Electronic Retailer - July 2011 - 40

BY GREG SATER

CHANNEL CROSSING: LEGAL

Online Advertising and the FTC
In the year 2000, the FTC came out with its guide on online advertising. It was called the Dot Com Disclosures. Back then, nobody had heard of Osama bin Laden, Shaq and Kobe both played for my beloved Lakers (and they got along), banks actually lent people money and a tweet was something that only a bird could do. Now, we’ve got Facebook, Twitter, YouTube, Google, Bing, Amazon, eBay, Androids, iPads and a host of other things that, along with high-speed wireless, have transformed the face of online marketing. It’s no big deal now for even the most basic website to offer rich video content, to have countless ads from multiple advertisers, to have products promoted via thousands of unrelated online affiliates or to have a product live or die based on what a mommy blogger has to say about it. Today, the savvy marketers are those who are looking for ways to tap into the millions of people who are using sites other than their own – specifically, online social media sites where people can “virally” spread the word about a product. Quite appropriately, therefore, the FTC is working on an update to its now ancient Dot Com Disclosures and is requesting public comments on such questions as: • What issues have been raised since 2000 concerning online technologies or internet activities? • What guidance in the original Dot Com Disclosures is outdated or no longer necessary? • What issues in online advertising today should be addressed by the FTC? The comment deadline is Aug. 10. Everyone knows (I hope!) that an advertiser who must make a particular disclosure or disclaimer to render the rest of its ad copy non-deceptive must make that disclosure in a way that is “clear and conspicuous.” The Dot Com guide was useful on that point because, at least as to the kind of website that was prevalent in 2000, it laid out a number of visual examples of disclosures that the FTC agreed were clear and conspicuous. It also gave examples of many that were not. However, we’re not in Kansas anymore, Toto. Websites today have a lot more content, including streaming video and ads from third parties, in many cases cluttering things and making it harder for a disclosure to be seen. Websites today also are often being viewed on mobile devices with small screens, sometimes with browsers that don’t pick up the entire website. And let’s be honest, there’s a lot more legalese to disclose these days. In response to a barrage of lawsuits, marketers now try to play it safe by posting terms and conditions and privacy policies that are longer than War and Peace. Meanwhile recent data indicates that people’s attention spans may be shorter, especially when looking at electronic media.

electronicRETAILER | July 2011

Electronic Retailer - July 2011

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