On December 1, 2022, the Federal Election Commission (“FEC”) adopted a proposal to extend its disclaimer rules to certain types of digital advertising appearing on digital platforms in addition to websites.
Before these new FEC rules become effective, they must be transmitted to the heads of both the House of Representatives and the Senate for a 30-day review period. Comments on a Supplemental Further Notice will be due 30 days after it is published in the Federal Register.
FEC Disclaimer Basics
With limited exceptions for small items and impracticability, political ad sponsorship disclaimers currently must accompany “public communications” that: (1) are made by a political committee; (2) expressly advocate the election or defeat of a clearly identified federal candidate; or (3) solicit a campaign contribution.
In addition to public communications by political committees, disclaimers must be included on all political committee websites that are available to the general public and in e-mails when a political committee sends “500 [or more] substantially similar” e-mails.
According to the current FEC rules, a “disclaimer” is a statement that identifies the group or individual that paid for a political ad and, where applicable, whether the communication was authorized by a candidate.
“Public Communication” Definition Update
The FEC’s rules have long defined “public communication” to include a broadcast, cable, or satellite communication, as well as newspaper, magazine, billboard, mass mailing, phone bank, and internet communications placed for a fee on another person’s website.
The updated rules now propose to define “public communication” to include “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” These rules were updated to apply to new forms of online public political advertising.
While the previous iteration of the definition encompassed banners, videos (whether streaming or broadcast), pop-up ads, directed search results, and social networking software, the new definition now encompasses ads that do not appear on websites. For example, a political ad paid for by a candidate’s committee may be posted on a social media application by an influencer. However, the FEC noted that this revised definition did not extend “to all future technology,” as some commenters recommended.
Updated Disclosure Requirements
Further, communications placed for a fee on another person’s website, digital device, application, or advertising platform (i.e., “internet public communications”) must also include a disclaimer that complies with specific regulations regarding size, text, graphics, color contrast, and video/audio components, which are similar to those imposed upon print and broadcast media.
The disclaimer requirement applies to any person that pays to place an internet public communication (i.e., the payor)—regardless of whether that person originally created, produced, or distributed the communication—and to any communication that meets the definition of an “internet public communication.”
The FEC clarified that “individuals who share someone else’s speech without paying to distribute it will not be affected by this revision,” and that internet disclaimer provisions do not impose the “stand-by-your-ad” requirements applicable to radio and TV ads.
Generally, disclaimers must be viewable without the recipient of the communication needing to take any additional action, such as clicking on additional links or opening pop-up windows. However, if a full disclaimer cannot be included or would occupy more than 25% of the communication due to character or space constraints that are “intrinsic to the online advertising product or medium,” an adapted disclaimer may be provided.
An “adapted disclaimer” is a clear statement that:
- States that the internet public communication is paid for;
- Identifies the payor using their full name or a commonly understood identifying abbreviation or acronym; and
- Includes a visible or audible element indicating that a person may read, observe, or listen to a full disclaimer after doing a certain action, such as going to a website.
The content of the required disclaimer will depend on who authorized and paid for the advertisement:
- 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 [web] address of the person who paid for the communication,” and that the communication is not authorized by any candidate or candidate’s committee.
If you have any questions about these new political ad disclosure rules, please contact your friendly Fletcher, Heald & Hildreth attorney.