It’s been about two weeks since the The FTC announced that it will closely examine whether and how to revise the Dot com disclosure guides. For those new to this field, the dot com guides (technically and boringly titled “.com guides”) are a useful source document to consult when trying to understand how and when to make disclosures, especially in digital advertising. . . Unlike the recent request for feedback on approval guideswhich provided specific changes the agency was proposing, the Dot com request is more general, asking a series of questions about broad areas to consider.
The latest version of the guides has been published in March 2013, and there’s nothing unusual about the agency taking a fresh look at the guides nearly a decade after they were published — it’s fairly standard procedure. Indeed, during the last round, the FTC hosted a workshop on the issue, so it’s certainly possible that if the comments raise enough interesting questions, we’ll see a follow-up to the Workshop 2012. But it’s also possible that the agency will review the filed comments and simply issue revised guides without further comment. So many options.
Many of us really thought this guy stood the test of time better than most. In 2013, we were on the 5s version of the iPhone, Snapchat was just getting started, we didn’t have Instagram stories yet, and TikTok and Triller weren’t even things. Take a look: Although some specific examples in the guides – such as JuliStarz (a famous tweeter selling diet pills) rather than a reference to current “influencers” – might seem a bit dated, the ground rules have really resisted.
What surprised us a bit about the latest claim, however, is that the press release announcing the review stated somewhat accusingly that the companies had used the guides in various ways to avoid liability by ” burying disclosures behind hyperlinks, a practice that can put consumers at financial risk.” fraud, intrusive surveillance and other harms. This sentence struck us as confusing, as we’ve always thought guides were pretty clear in their general antipathy towards hyperlinks. Indeed, the current Guides state quite clearly that “[d]Disclosures that are integral to or severable from a claim should not be hyperlinked,” and some of the examples they include are disclosures about medical conditions or certain significant additional charges. . Of course, the Guides do not prohibit the use of hyperlinks; they even state that the hyperlinks may be useful for accessing disclosures that “are not integral to the trigger request.” They also explain key factors to consider when evaluating hyperlinks, including how they are labeled, where they are placed, and how prominent they are. Most likely, questions are raised as to whether the disclosure is sufficiently integral to the claim to allow it to be hyperlinked or whether it should be closer to the claim. We anticipate that any hyperlink-related revisions will focus less on visuals and more on greater clarity and a narrowing of the universe where hyperlink disclosures may be deemed appropriate. This could have a significant impact on certain advertising claims in the future.
But the request for comment raised a wide range of additional questions the agency would consider, including, unsurprisingly, whether dark pattern techniques should be addressed in the revised guidelines. To be clear, “dark patternsis a general term that is increasingly used to describe almost all forms of online deception; so it’s likely that the new Guides incantation will adopt a twist of dark patterns, much like what we’ve seen in regards to the negative option policy statement, which has also been described in this press release as a tool against “illegal dark patterns”. It would be disappointing to say the least if the FTC decides to provide its first detailed guidelines on the use of dark patterns and not release the revised guides for comment.
The request also requests information about disclosures relating to advertising that appears in VR or the Metaverse, which I believe could make it the first official FTC document to actually use the term “Metaverse.” (I searched ftc.gov and nothing came up, but let’s just say the agency’s search engine is suboptimal at times.) While it certainly seems like the same rules of conduct should apply. apply to the metaverse, it is also possible that some of the questions about providing effective disclosures in the metaverse will emerge.
Other categories of news of interest the agency is calling for comment include social media issues, the use of restricted media disclosures, mobile disclosures, and unique issues for audiences or data. specific demographics regarding sight, hearing or understanding of the disclosures. . The agency also asks for any research on the effectiveness of disclosures, and I can tell you that research is always scrutinized by agency staff.
If you plan to submit a comment, the deadline is August 2.