Facebook recently asked the Federal Election Commission if it can forgo putting required disclaimers on its smaller political advertisements — such as disclosing who paid for the ad. The FEC said “no.” This ruling sends a reminder that, as the fall elections approach, hyperlocal publishers must ensure they comply with federal regulations that govern political advertisements.
Most political advertisements must include some form of a disclaimer explaining who paid for the ad and whether it was approved by a candidate. Federal regulations require these disclosures on the following types of Internet communications:
– All websites operated by political committees.
– All ads purchased by a political committee for placement on another person’s websites.
– All ads purchased for a fee by a candidate or another person that advocates a candidate or political position.
The disclaimers must be clear and conspicuous. The disclaimers must disclose:
– Who paid for the ad.
– If the ad is paid for by a committee or other group.
– A disclosure as to whether the candidate has or has not approved the ad.
The rules apply equally to advertisements purchased on political blogs or on hyperlocal publications that reach out to a general audience. The regulations provide some exceptions for small items such as bumper stickers, pins, buttons and text messages. On the other hand, the FEC has been less willing to grant exceptions for small internet advertisements.
Less than a year ago, the FEC ruled that Facebook must include the advertising disclaimers in its smaller advertisements, similar to the “Sponsored Stories” ads that appear on the right column of Facebook’s user pages, despite Facebook’s protests that the small ads could not accomodate the disclaimers. Facebook claimed that the “small item” exception under the regulations should apply to Facebook’s standard ads, which is limited to 135 characters, and its Sponsored Stories ads, limited to 100 text characters. The SEC denied the request. “The limitation on the size or the number of characters that Facebook allows to be included in a Facebook ad is not mandated by the physical limitations of the display medium or technology,” the commission ruled in its opinion on June 15, 2011. “Facebook’s business decision in favor of small ads does not justify elimination of the statutory disclaimer requirement given that it remains physically and technologically possible for Facebook to increase both the size of its ads and the number of characters that may be included in its ads.”
On the other hand, the SEC provided an exemption to Google text ads, which are limited to 70 characters. The FEC is considering modifying the rules to determine whether it should consider allowing a link to a web page operated by the purchaser of the advertisement that would include the disclaimer. The FEC took public comments late in 2011 but has not proposed updated rules.
Hyperlocal publishers should ensure that the political ads sold on their sites contain all the disclaimers required under FEC regulations. Hyperlocals also should ensure that any creative elements they provide for a political advertisement include a proper disclosure.
Brian Dengler is an attorney with Vorys Legal Counsel and journalist who covers legal issues in eMedia. He is a former vice-president of AOL, Inc., a former newspaperman, and an EMMY-winning TV journalist. He teaches new media issues as an adjunct at Kent State University and formerly at Otterbein University.