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Informed Advertisers: How to disclose information online and on mobile platforms

Issued in 2000, the Federal Trade Commission’s “Dot Com Disclosures” document helps online businesses avoid deception with guidance on how to disclose “in a clear and conspicuous way” information material to any form of consumer interaction with its products or services. As D. Reed Freeman, Jr., a Morrison & Foerster partner focused on consumer protection law, explains, this useful document is getting a new look.

“The FTC is reviewing its guidance for the new media universe of mobile devices, apps, and social media,” says Freeman. “As before a disclosure must be unavoidable, but that is challenging in today’s 3-D world of shrinking screens and hyperlinks.”

With the comment period now closed and press announcements of the new guidelines expected by early 2012, what should online advertisers look for? “Rather than impose hard rules on this dynamic, fast-evolving market, we’re expecting the FTC to take a flexible approach,” says Freeman. “For some specific situations, the FTC may provide examples that suggest design-based standards such as size, placement, and proximity. Overall, though, the FTC will likely provide ‘performance-based’ guidelines, with enough flexibility to last through the continued development of advertising media in the mid-term.”

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  • Reed Freeman

    On May 30, 2012, the FTC convened a workshop to update the Dot Com Disclosures. The workshop was organized into four panel discussions, with several short presentations.  In the panels, FTC staff moderated, but did not comment on the topics, and demurred when asked questions.
     
    Major themes that emerged from the conference included:
     
    1.  Context matters: The device, the offer, the consumer, etc.
    2. The principles of consumer protection law are probably still correct, and technology must adapt to them, not vice-versa.
    3. Placement, prominence and timing of disclosures are even more important.
    4. Balance: Companies need to give enough information, but not so much that they overwhelm consumers.  At the same time, the FTC needs to give guidance on how to disclose, but not over-regulate and stifle innovation
     
    The FTC is accepting comments on the workshop until July 11, 2012.  See https://ftcpublic.commentworks.com/ftc/inshortworkshop/.  The FTC will incorporate those comments into a report on the workshop.  There is no timetable for the report, but the FTC is aiming for a release this fall.