Legal Review: After A Decade, FTC Dusts Off ‘Dot Com Disclosures’1 Jul, 2011 By: Michael A. Signorelli, Jeffrey D. Knowles Response
By Jeffrey D. Knowles and Michael A. Signorelli
The Federal Trade Commission (FTC) announced on May 26 that it planned to update its Dot Com Disclosures: Information About Online Advertising guidance document.
The Dot Com Disclosures document has not been revised since it was first issued. When reading the 11-year-old press release announcing the document, it is difficult to ignore how much the online marketplace has changed since 2000. When the Dot Com Disclosures were first released, consumers were just beginning to explore E-commerce, and the FTC was concerned with fraud and deception on the Internet. In addition, legitimate confusion existed about how consumer protection laws created in a paper-and-ink world applied to the new media represented by E-mail and websites. It is telling in the Dot Com Disclosures that the FTC spent a significant amount of time outlining how the terms “written,” “writing,” “printed,” and “direct mail” applied to the online world.
Although there has been no change in the document’s primary mission — to inform advertisers that consumer protection laws and the requirement to provide clear and conspicuous disclosures apply equally in the online and offline worlds — that seems to be the only thing that has not changed. The FTC seeks to learn whether its guidance should be revised to account for myriad technical advances.
The FTC appears to be keen to address the changes in the new media sector and the possible impact of those changes — and will accept general comments from the public on the Dot Com Disclosures document until Aug. 10. In addition, in its notice inviting comment, the FTC seeks specific comments on the following questions:
- What issues have been raised by online technologies or Internet activities or features that have emerged since the guide was issued that should be addressed in a revised document?
- What issues raised by new technologies or Internet activities or features on the horizon should be addressed in a revised guide?
- What issues raised by new laws or regulations should be addressed in a revised guide?
- What research or other information regarding the online marketplace, online advertising techniques or consumer online behavior should the staff consider in revising Dot Com Disclosures?
- What research or other information regarding the effectiveness of disclosures — and, in particular, online disclosures — should the staff consider in revising the guide?
- What specific types of online disclosures, if any, raise unique issues that should be considered separately from general disclosure requirements?
- What guidance in the original document is outdated or unnecessary?
- What guidance should be clarified, expanded, strengthened or limited?
- What issues relating to disclosures have arisen from: established online sellers providing a platform for other firms to market and sell their products online; website operators being compensated for referring consumers to other Internet sites that offer products and services; and other affiliate marketing arrangements?
- What additional issues or principles relating to online advertising should be addressed?
- What other changes, if any, should be made to Dot Com Disclosures?
Although the FTC provided no guidance on whether it will update the Dot Com Disclosures or when it would act, now is the time for marketers to think about potential changes. Just as the original version of the Dot Com Disclosures shaped online advertising practices a decade ago, the revised Dot Com Disclosures, as well as the comments filed in regard to the FTC’s request, could provide insight into how the FTC, industry and public interest groups view the state of online advertising.
Jeffrey D. Knowles is a partner at Venable LLP and chair of the firm’s Advertising, Marketing and New Media Group. Michael A. Signorelli is an attorney at Venable. They can be reached at (202) 344-4000.