ADventures in Law

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It has been two weeks or so since the <a href="https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-looks-modernize-its-guidance-preventing-digital-deception">FTC announced</a> that it is going to take a close look at whether and how to revise the <a href="https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf">Dot com Disclosure Guides</a>. For those who are new to this, the dot com guides (technically and annoyingly titled the “.com” guides) are a helpful source document to look at when you are trying to figure out how and when to make disclosures, particularly in digital advertising. Unlike the recent <a href="https://www.adventures-in-law.com/ftc/testimonial-guides-update-the-things-that-make-us-go-hmm/">request for comments on the Endorsement Guides</a>, which provided specific changes the agency was proposing, the Dot com request is more generalized, asking a series of questions about broad areas for consideration.&nbsp;

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The latest version of the guides was <a href="https://www.ftc.gov/news-events/news/press-releases/2013/03/ftc-staff-revises-online-advertising-disclosure-guidelines">issued in March 2013</a>, and there is nothing unusual about the agency taking a fresh look at the guides almost a decade after they were issued – that is fairly standard procedure. Indeed, in the last go-round, the FTC held a workshop on the issue, so it is certainly possible that if the comments raise enough interesting issues, we will see a sequel to the <a href="https://www.ftc.gov/news-events/news/press-releases/2012/05/ftc-announces-preliminary-agenda-workshop-about-advertising-disclosures-online-mobile-media">2012 workshop</a>. But it is also possible that the agency will review the comments filed and just issue revised guides without further comment. So many options.

So many of us really thought this guy stood the test of time better than most. In 2013, we were on version 5s of the iPhone, Snapchat was just getting started, we didn’t yet have Instagram Stories, and TikTok and Triller were not even things. Take a look: While some specific examples in the Guides – such as JuliStarz (a celebrity tweeter hawking diet pills) rather than a reference to current “influencers” – may seem a bit dated, the ground rules really have held up.

What surprised us a bit about the latest request, however, was that the press release announcing the review stated somewhat accusingly that firms have used the Guides in various ways to avoid liability by “burying disclosures behind hyperlinks, a practice that can expose consumers to financial fraud, intrusive surveillance, and other harms.” That phrase struck us as confusing, since we always thought the Guides were pretty clear in their general antipathy toward hyperlinks. Indeed, the current Guides state fairly clearly that “[d]isclosures that are an integral part of a claim or inseparable from it should not be communicated through a hyperlink,” and some of the examples they include are disclosures about health issues or certain significant additional fees. The Guides do not, of course, prohibit the use of hyperlinks; they even state that hyperlinks can be useful for accessing disclosures that “are not integral to the triggering claim.” They also explain the key factors to look at when evaluating hyperlinks, including how they are labeled and their placement and prominence. Most likely, questions are being raised in matters as to whether the disclosure is sufficiently integral to the claim to allow it to be in a hyperlink or whether it must be closer in proximity to the claim. We would predict any revisions relating to hyperlinks may focus less on the visuals and more on some further clarity of and narrowing of the universe where hyperlink disclosures may be deemed appropriate. This could have a significant impact on some advertising claims going forward.

But the request for comment raised a wide range of additional issues that the agency was going to consider, including, not surprisingly, whether dark pattern techniques should be addressed in revised guidelines. To be clear, “<a href="https://www.adventures-in-law.com/advertising/beware-of-dark-patterns-randy-shaheen-and-amy-mudge/">dark patterns</a>” is a broad term that is increasingly being used to describe almost all forms of online deception; it is therefore likely that the new incantation of the Guides will adopt a dark patterns spin, much like what we saw with respect to the Negative Option Policy Statement, which was also <a href="https://www.ftc.gov/news-events/news/press-releases/2021/10/ftc-ramp-enforcement-against-illegal-dark-patterns-trick-or-trap-consumers-subscriptions">described in that press release</a> as a tool against “illegal dark patterns.” It would be disappointing to say the least if the FTC decided to provide its first detailed guidance on the use of dark patterns and did not issue the revised Guides for comment.

The request also seeks information on disclosures relating to advertising that appears in virtual reality or the metaverse, which I believe may make this the first official FTC document that has actually used the term “metaverse.” (I searched on ftc.gov and nothing popped up, but let’s just say the agency’s search engine is suboptimal at times.) Although it certainly appears that the same rules of the road should apply to the metaverse, it is also possible that some unique issues on providing effective disclosures in the metaverse will emerge.

Among the other interesting categories of information that the agency calls out for comment are issues relating to social media, the use of disclosures in space-constrained media, disclosures in mobile, and unique issues for specific audiences or demographics regarding seeing, hearing or comprehending disclosures. The agency also requests any research on the effectiveness of disclosures, and I can tell you, research is always closely reviewed by agency staff.

If you are thinking about filing a comment, the due date is Aug. 2.

Dot Com Guideline Revisions Will Focus on Hyperlinks, Dark Patterns, the Metaverse and More