Yesterday, the FTC convened a day-long public workshop to discuss updating its “Dot Com Disclosures” guidance on presenting online advertising disclosures. The FTC is considering whether it should overhaul this guidance, which dates to 2000, to address current trends such as social media and mobile advertising. The workshop also included a panel devoted to mobile privacy disclosures. Newly confirmed Commissioner Maureen Ohlhausen kicked off the event by explaining that the FTC does not intend to expand its Section 5 authority, but wants to shed light on how existing legal principles should apply to new technologies. Mary Engle, the head of the FTC’s Advertising Practices Division, told participants that new technology platforms should adapt to existing legal principles, not the other way around. But discussion at the workshop highlighted the challenges of reaching this goal in a way that is technically feasible and does not detract from users’ experience. One obvious challenge is the space limitations of mobile devices and certain social media platforms, which give advertisers less room to provide disclosures. Numerous panelists opined that, despite these limitations, disclosures should still be placed near advertising claims. A few panelists suggested that ad campaigns that require extensive disclosures should not use platforms where such disclosures are not feasible. To cope with space limits, some panelists endorsed the concept of standardized icons, labels, and other shorthand signals that give consumers access to disclosures. The mobile privacy disclosures panel featured several presentations by programs that are developing such offerings. Other panelists, however, expressed concern that these signals may not be understood by consumers, or saw a need for more consumer education to promote understanding. Numerous panelists also advocated for the FTC to retain flexibility for companies and for social media users. Another challenge is the fact that digital content can easily be relocated in cyberspace, potentially losing or altering disclosures in the process. For example, the panel on social media disclosures discussed the challenge of ensuring that disclosures travel with promotional messages when blog content is repurposed or syndicated. Disclosures presented in a sidebar will be lost if the blog is viewed in an RSS feed. Translating webpages from desktop to mobile environment can also affect how consumers see disclosures. The FTC now faces the task of distilling these and other workshop discussions, as well as comments solicited last year, into concrete guidance for the business community. Ms. Engle, the Advertising Practices chief, pledged that the FTC will seek to turn these “shades of gray” into “as many … blacks and whites as we can.” To that end, the FTC will be accepting comments until July 11 and expects to issue its new guidance as early as the fall.
Stu Ingis, Milo Cividanes, Julia Kernochan Tama, and Michael Signorelli
