On March 12, 2013, the Federal Trade Commission issued revised
guidance for online advertisers on how to make "clear and
conspicuous" disclosures to ensure that an online
advertisement is truthful and not misleading. The guidance, .com
Disclosures: How to Make Effective Disclosures in Digital
Advertising, comes nearly 13 years after the FTC issued Dot Com
Disclosures. It directly addresses what mobile and online
advertisers need to consider when they communicate with consumers
in the ever-changing digital age, including in connection with
mobile devices with small screens and social media platforms.
The FTC guidelines emphasize that "deception is unlawful no
matter what the medium." Mobile devices and social media
present special challenges for advertisers. While there is nothing
new about the FTC's guidance that disclosures must be
"clear and conspicuous," new issues have arisen as to
what that means in the online mobile device world. The guidelines
state that online advertisers should place the disclosure "as
close as possible" to the claim it qualifies. If
space-constrained ads, such as a banner or tweet, require a
disclosure, the disclosure should be incorporated into the ad
whenever possible. Online advertisers should avoid using pop-ups to
include any disclosures because they are often blocked.
If a particular device or platform does not make it possible to
make a required disclosure clear and conspicuous, that device or
platform should not be used to disseminate advertisements that
require such disclosures. Disclosures should be displayed before a
consumer can proceed with a transaction, and they may need to be
repeated.
The guidelines also address how disclosures should be displayed if
used in a hyperlink or require the consumer to "scroll"
through a screen or webpage. If hyperlinks are used to lead to a
disclosure, the hyperlink should be labeled appropriately "to
convey the importance, nature, and relevance of the information it
leads to" and take consumers directly to the disclosure on the
click-through page, among other requirements such as being placed
as close as possible to the claim that it qualifies.
"Scrolling" is not preferred, and if
"scrolling" is necessary to view a disclosure, the
advertiser must use cues to encourage the consumer to scroll.
The ultimate test as to whether an ad is deceptive remains the
same, and advertisers are responsible for ensuring that their
message is truthful and not misleading. As to disclosures, the
advertiser is responsible for ensuring that the information
intended to be disclosed is actually conveyed to consumers. The new
guidelines state that mobile and online advertisers should be aware
of where consumers do and do not look on a screen, consumer uses of
hyperlinks, and consumer habits and uses of the mobile device,
online, or social platform containing the ad.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.