It has been 11 years since the Federal Trade Commission (FTC) issued its guidelines regarding disclosures in Internet advertising, known as the Dot Com Disclosures.

Back in 2000, when the Dot Com Disclosures were first published, the Internet community had just experienced the bursting of the dot-com bubble, Pets.com was still flying high, no one had heard of an iPhone (or even an iPod for that matter) and Marc Zuckerberg was in 10th grade. Much has changed. Since that time, technology has drastically improved the speed and quality of online communications and Internet advertising in the United States has grown from just over $8 billion in 2000 to over $37 billion in 2010.

As a result of the changing online landscape, the FTC has announced that it is planning to update the Dot Com Disclosures and is soliciting comments from the public in order to gauge what issues should be addressed in the revised guides.

The Dot Com Disclosures were designed to assist online advertisers in complying with the prohibition on engaging in unfair or deceptive acts or practices pursuant to Section 5 of the FTC Act. When an ad makes an express or implied claim that might mislead a consumer without further explanation, a clear and conspicuous disclosure is necessary, regardless of the medium used to convey the marketing message. The Dot Com Disclosures are intended to apply this general legal requirement to the unique environment of the online world.

The Dot Com Disclosures originally identified six factors to consider when making disclosures:

  1. the placement of the disclosure and its proximity to the claim being qualified;
  2. the prominence of the disclosure;
  3. whether other portions of the ad distract attention from the disclosure;
  4. whether disclosures need to be repeated;
  5. whether audio disclosures have sufficient volume, cadence and duration; and
  6. whether the language of the disclosure is understandable for the intended audience.

The Dot Com Disclosures contained examples of mock ads to help analyze and apply these six factors. The examples published in 2000 obviously did not contemplate ads on smartphones or iPads or the use of social networking. As a result, marketers have been left to their own devices to apply the guidance from the disclosures to current technology and services.

While the FTC's request for comments covers a number of areas, the FTC identified the following areas of particular interest:

  • issues raised by new technologies (i.e., smartphones; tablets) and new Internet activities (i.e., social networking; user-generated content);
  • issues raised by new laws since 2000 (e.g., laws regarding privacy);
  • unique issues that require disclosures separate from general disclosures (i.e., online behavioral advertising);
  • whether guidance in the original Dot Com Disclosures is outdated or unnecessary; and
  • issues relating to online affiliate marketing.

The deadline for public comments is August 10, 2011. Please do not hesitate to contact us if you have any questions or would like our assistance in filing public comments with the FTC.

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