FEC Approves New Internet Disclaimer Rules: New Rule Applies to Paid Advertising on Websites, Digital Devices, Applications, and Advertising Platforms
By: Michael Bayes, Jessica Furst Johnson, and Andrew D. Watkins
On December 1, the Federal Election Commission (FEC) approved new regulations that expand the agency’s internet disclaimer requirements. The regulations will become effective 30 days after they are published in final form, likely in mid-January 2023. The FEC’s new rule – which it has been considering since 2011 – provides specific disclaimer requirements for paid text and graphic, video, and audio-only communications over the internet.
The FEC’s current regulations require a disclaimer on “communications placed for a fee on another person’s Web site” if the advertisement is paid for by a federal political committee, or if it contains express advocacy or solicits a federal contribution. The new rules expand that requirement beyond “another person’s Web site” to include “any public communication over the internet that is placed for a fee on another person’s website, digital device, application, or advertising platform.” The terms “digital device, application, or advertising platform” are not defined in the new regulations.
The new rules also specify that text and graphic communications must include a “clearly readable” written disclaimer, while video communications must display a disclaimer for at least four seconds, and audio-only communications must include a spoken disclaimer within the audio.
The FEC’s new rules also introduce the “adapted disclaimer,” which allows for an abbreviated disclaimer where one “cannot be provided or would occupy more than 25 percent of the communication due to character or space constraints.” An “adapted disclaimer” must convey who paid for the ad by full name or abbreviation and include an “indicator” that directs the viewer to a full disclaimer that may be viewed through an alternate “mechanism,” which may take the form of “hover-over text, pop up screens, scrolling text, rotating panels, and hyperlinks to a landing page.”
While most campaigns and PACs have long included standard “paid for by” disclaimers on all internet-based communications, and not only those appearing on websites, the new regulations provide specific guidance for those attempting to comply with FEC requirements. However, the new rules also leave unanswered many questions that we anticipate the FEC will be forced to address in the coming years. Most significantly, as noted above, the terms “digital device, application, or advertising platform” are not defined. The FEC also removed language at the last minute that would have required a disclaimer on internet-based communications “promoted for a fee,” choosing instead to consider this language in a different rulemaking and requesting additional comments. Lastly, the Commissioners were unable to resolve whether the “small items” exception applies to the internet, or whether all “small” internet communications now must include the new “adapted disclaimer.”
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