Thursday, December 31, 2015

Advertising Guidelines from the FTC

Advertising guidelines from the Federal Trade Commission underscore the deceptive features of ‘native’ advertising.  Prior to Christmas the FTC released its “Enforcement Policy Statement on Deceptively Formatted Advertisements.”  The attention was towards the use of native advertising which is ‘dressed’ or ‘tailored’ to appear as if it is an actual editorial.  The FTC notes the creativity in advertising and is concerned with the potential for deceptive business practices by means of how the advertising is delivered.  These types of ads can be fashioned to appear as images, infographics, and even use animations, images and streaming processes.
 
The FTC is trying to draw to the line between what can be construed as advertising for commercial purposes and what can be construed as content without any commercial purpose.  The sophistication of the digital media use of images and videos tends to camouflage the actual ad being delivered.  The potential for the consumer to misinterpret the message is the concern that drives the FTC to earmark this type of advertising.  While the FTC understands the creative need for advertising to be integrated and seamless with the embedded platform and medium, it presents a high potential for misleading the viewer from knowing and identifying the sponsor or advertiser or that there is actually an advertisement in play before there very eyes.  The reasons for guidelines underscore the purpose of informing businesses on what the FTC considers deceptive, unfair, misleading, and possibly fraudulent in advertising.
 
The FTC’s Bureau of Consumer Protection is stressing the need to carry over ‘time-tested’ ‘truth-in-advertising’ norms to the digital age by emphasizing that every consumer should be made aware somehow that what they are viewing on social media or the internet in general is a commercial ad or not commercial content.  FTC’s general statement stressed that consumers could be misled about the purpose and origin of the content they are viewing on the internet that could then cause viewers to make bad decisions about a product or issue being presented.   Some would argue that without sound discretion in the setting out of these guidelines, the FTC could lead to censorship of commercial speech, but then again, they are just guidelines.  Yet, businesses that are appropriately counseled to resort to what the FTC considers inappropriate, do so to avoid regulatory take-down hassles of their advertising.
 
One of the guides emphasizes that the label ‘promoted’ is misleading because it could lead viewers to misconstrue it as an endorsed content.  Another guide is that the advertising company should provide an identifying means on the content of the main page that there will be advertising purpose to enhance transparency in the native advertising vehicle within websites, blogs, and social media platforms; this also includes newsletters, emails, web blasts, and webcasts.
All in all, disclaimers and notices take once again center stage to make John Q. or Mary J. Public aware of what he or she is reading and viewing.  Pretty soon the FTC will propose guidelines on how the public could enhance their own reading comprehension and discernment over what they view on the web.

Lorenzo Law Firm is “Working to Protect your Business, Ideas, and Property on the Web."
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