FTC Revisiting Key Digital Advertising Guidance

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On June 3, the Federal Trade Commission (FTC) issued a request for information that could form the basis of a major update to its digital advertising guidelines. The FTC’s most recent guide to digital advertising is its 2013 “.com Disclosures – How to Make Effective Disclosures in Digital Advertising” (.com Disclosures Guide). The .com Disclosure Guide provides guidance on how to make “clear and visible” disclosures in online advertisements and provides examples of problematic advertisements with explanations on how to make clear and visible disclosures. The .com Disclosure Guide has been hugely influential in setting the bar for compliant Internet advertising. However, in the decade since the FTC released the .com Disclosure Guide, the worlds of digital advertising and online transactions have changed dramatically.

The FTC is now considering updating and reissuing the .com disclosure guide and is seeking public comment to inform such an effort. In a blog post, the FTC defined a key area for review as “the increased use of dark templates, manipulative user interface design, and other forms of digital deception that pose unique risks to online consumers. and in mobile space”. In April 2021, the FTC held a workshop on the issue of dark patterns — in general, user interfaces that have been intentionally designed to trick users into doing things, like buying unwanted products or accepting recurring bills, that cause harm to consumers.

The FTC’s request for information lists key questions for commenters to answer. Specifically, the questions highlight the following topics:

  • Issues raised by current or emerging online technologies, such as advertising on social media platforms and games or the use of “dark pattern” techniques in digital advertising;
  • Issues raised by new laws and regulations;
  • Research on, among other things, online advertising techniques and the effectiveness of disclosures that the FTC should consider;
  • Issues raised by certain types of disclosures that should be discussed separately from general disclosure requirements;
  • Advice from the .com disclosure guide that is potentially outdated;
  • Guidelines in the .com Disclosure Guide that need to be clarified, expanded, strengthened, or limited;
  • Potential modification and/or clarification of guidance on hyperlinks, multiple web pages, restricted space advertisements and advertising on mobile devices;
  • Potential new guidance on issues specific to specific audiences or demographics seeing, hearing or understanding the disclosures;
  • Potential new guidance on issues arising from “multi-party sales agreements,” such as those involving third-party platform providers, online referral programs, and other affiliate marketing agreements; and
  • Potential new directions on advertising in VR or the Metaverse.

Comments can be submitted online or by mail before August 2, 2022.

This request for information could ultimately lead to major changes in how the FTC views the requirements placed on businesses of all kinds to advertise their products online to the public.

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