Last week, the Federal Election Commission (FEC) adopted new disclaimer requirements for internet-based political advertising, including the identification of the ad sponsor. This decision resolves many of the issues that have been debated at the FEC for over a decade as to what internet content is considered a “public communication” that requires a disclosure of the sponsor of the content – and just what the disclosure should reveal. We wrote about a 2018 rulemaking soliciting comment on these issues that was just part of the process that led to the vote taken last week. While the FEC had generally acknowledged that online political ads should have some sponsorship identification, it is only now that the FEC has adopted detailed requirements for this identification. As discussed below, the proceeding requires disclosures when a sponsor pays an online platform to transmit the political message. However, the FEC postponed for another day consideration as to whether the disclaimers would be required when the sponsor pays others to promote or widely disseminate the message to platforms that are not paid (e.g., where people are paid by a sponsor to post political messages on social media sites). These rule changes will impact most media companies with websites and mobile apps, as well as the nationwide streaming services now developing ad supported platforms.
Specifically, the FEC adopted a proposal that would amend its rules to require a disclaimer on those “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” The FEC also issued a Supplemental Notice of Proposed Rulemaking seeking public comment as to whether disclaimers should be required for political communications where the platform itself may not have been paid, but where the sponsor of the communication paid others to promote or otherwise broaden the dissemination of the communication.
The new rules also describe the disclaimers that will be required on internet communications once the new rules become effective. The FEC rejected proposals to include the “stand by your ad” language required in political advertisements transmitted on TV, radio, and cable. On these platforms, the stand-by-your-ad provisions require that the candidate identify themselves and state that they approved the message. The FEC rejected the inclusion of this clause in the mandated disclaimers, finding that, even though very similar audio and video ads are now transmitted online, including by streaming services, the FEC’s statutory authority to require such language only applies to broadcast and cable.
Instead, the general disclaimer rules on disclaimers will be followed. The FEC summarized the existing rules which include requirements set out below:
- If a candidate, an authorized committee of a candidate, or an agent of either, pays for and authorizes the communication, then the disclaimer must state that the communication “has been paid for by the authorized political committee.”
- If a public communication is paid for by someone else, but is authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must state who paid for the communication and that it is authorized by the candidate, authorized committee of the candidate, or an agent of either.
- If the communication is not authorized by a candidate, an authorized committee of a candidate, or an agent of either, then “the disclaimer must clearly state the full name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication, and that the communication is not authorized by any candidate or candidate’s committee.”
- Every disclaimer “must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity of the person” that paid for the communication.
The FEC also adopted other requirements for disclaimers:
- for such communications with text or graphic components, include the required written disclaimer,
- be of sufficient type size to be clearly readable,
- be displayed with a reasonable degree of color contrast,
- for video ads, be visible for at least 4 seconds,
- For audio with no video, graphic, or text components, be included within the audio.
The decision also discusses exceptions to these requirements where, because of the size of the announcement or other technical limitations, the full disclaimer cannot be added. These exceptions will apply when the full disclaimer “cannot be provided or would occupy more than 25 percent of the communication due to character or space constraints intrinsic to the advertising product or medium.” The FEC describes the disclaimer requirements for communications that fit within this exception – an “adapted disclaimer” as “a clear statement that the internet public communication is paid for, and that identifies the person or persons who paid for the internet public communication using their full name or a commonly understood abbreviation or acronym by which the person or persons are known, which is accompanied by: (1) an “indicator” and (2) a “mechanism.” An “indicator” is notice in the ad as to the existence of the full disclaimer information at some other location, and a “mechanism” is a way to get to that information, such as through a link on a textual or graphic ad.
This decision clarifies that, for traditional political advertising on online platforms for federal candidates and elections, sponsorship identification is required. The Further Notice will seek to clarify the obligations of paid influencers and others as to their disclosure requirements, but it seems safe to assume that some disclosure eventually will be required.
But don’t think that these are the only rules to consider. As we have written before (see, for instance, our articles here and here), states have also been very active in adopting their own rules as to disclosure of sponsors of political advertising, some much broader than the FEC rules adopted last week. In some cases, the state rules apply only to state candidates and issues. In other cases, they are not specifically limited. All of these rules, both state and federal, are very complicated and get into details and nuances not covered in this article. So, when dealing with these issues (both state and federal) carefully review all the rules and seek guidance from attorneys and other advisors who are familiar with those nuances.
The new FEC rules will become effective after they have been transmitted to Congress for a 30-day review period. Comments on the Supplemental Further Notice will be due 30 days after the notice is published in the Federal Register.
Courtesy Broadcast Law Blog