The FTC to Update Guidance for Online Advertising: What Does the Future Hold?

Rich Cleland, Assistant Director, FTC Division of Advertising PracticesAnthony E. DiResta, Partner, Winston & Strawnadiresta@winston.com; (202)282-5782Keith Trivitt, Associate Director of Public Relations, PRSA;Tw: @KeithTrivittTw: @PRSA Joe Chernov, VP of Content Marketing, Eloqua Tw: @jchernov

AGENDA• Overview of FTC’s Initiative to

Update “Dot Com Disclosures”• A Brand Marketer’s Perspective:

Emerging Technologies• Perspective from the Public

Relations Society of America• Comments to the FTC’s Initiative• Questions

The FTC Initiative: Rich Cleland

• Background into “Dot Com Disclosures”– 2000 Issuance– Subsequent Developments– “Clear and conspicuous” standard

• Expectations and Outcomes Desired by FTC in light of “new media” or emerging technologies

A Brand Marketer’s Perspective

Joe Chernov, VP of Content Marketing, Eloqua

Tw: @jchernov

About Me• VP of Content Marketing, Eloqua• Co-chair Ethics Advisory Panel, WOMMA• Contributor to WOMMA’s ethics code• Member of WOMMA task force on

emerging technology • Contributor to previous public

comments re: Endorsements & Testimonials Guides

Marketers Get Endorsement Guides (for the most part)

• Still some crises caused by ethical transgressions

• Most marketers understand transparency is essential

• Public, media, associations reasonable at “policing”

Timeline of Disruptive Technologies

Four “Facebook Era” Concerns

1. “Generic endorsements” that prevent disclosure

2. It’s possible to adhere to some sites’ TOS, yet still (potentially) violate FTC guidelines

3. The battleground may shift to search4. Are there “sacred cows”?

Sometimes Tech Impedes Disclosure• Value of “transitive trust” rises as social graph

spreads, but disclosure impeded by:– One-click endorsements (Likes, +1’s / hearts on

Instagram, Frenzapp, Tumblr / votes on Quora) – Status emblems in some geosocial networks– Twitter’s auto-RT function

• My solution: Avoid material incentives unless disclosure can be made; don’t use auto-RT when connection exists

Can a TOS be a Trap?

• Official statement: “Quora’s policy is that a user should disclose any relevant affiliations explicitly in an answer or in the topic bio …”

• My solution: Replace should with must; don’t use “variable disclosure”

A New Value Emerges: SEO

• If +1’s affect/will affect the SERPs, a company or SEO firm could pay groups to +1 site, product, etc. to improve search rank

• My Solution: Don’t mess with this; don’t mess with Google

Overlooked Audience

• Do disclosure requirements apply to:– Celebrities– Shareholders– Angels / VCs– Advisors – Board members

• My solution: Hope some clarity emerges from the Arrington/Huffington drama

PRSA Comments to FTCPRSA Comments to FTC PRSA Comments to FTCPRSA Comments to FTC

Keith TrivittAssociate Director of Public Relations

Public Relations Society of America

Tw: @KeithTrivitt

Public Relations Society of AmericaPublic Relations Society of America• World’s largest organization of PR and communications

professionals• Established in 1947; headquartered in New York• Mission:

– PRSA provides professional development, sets standards of excellence and upholds principles of ethics for its members and, more broadly, the multi-billion dollar global public relations profession. We also advocate for greater understanding and adoption of public relations services, and act as one of the industry’s leading voices on the important business and professional issues of our time.

PRSA Code of EthicsPRSA Code of Ethics• Industry standard for 60+ years• All PRSA members (32,000) required to abide by

Code of Ethics• Advocates for transparency and honesty in

communications• Code Provisions:

– Free Flow of Information– Competition– Disclosure of Information– Safeguarding Confidences– Conflicts of Interest– Enhancing the Profession

Objectives of PRSAObjectives of PRSA CommentaryCommentary

• Provide perspective of 200,000+ U.S. PR professionals

• Interest in enhancing transparency in online marcomms

• Specificity in recommendations• Modernization of guidelines given current online

marketing challenges

PRSA’s Recommendations to PRSA’s Recommendations to FTCFTC• Further restrictions risk stifling innovation

– Self-regulation in this space can work– More timely & clear guidance needed

• Character and text limitations– Issue over inclusion of brand disclosures at every point of

social media communications and marketing– Clarity needed regarding how brands can reasonably

provide disclosures within character-limited social networks

• Seeking clear guidance from FTC – How businesses can appropriately communicate with and

market consumers online

PRSA’s Recommendations to FTCPRSA’s Recommendations to FTC• Merge “Blogger Rules” with Dot Com Disclosures

– Significant overlap– Disclosure is key issue in both

• Disclosure is paramount– Disclosure of relationships, motivation, compensation and

other pertinent factors

• “Clear and Conspicuous” Standard– Companies should be transparent in ALL communications

and marketing – Reality of Twitter-led marketing

• Is “clear and conspicuous” still viable?

Commitment to Responsible Commitment to Responsible

MarketingMarketing• PRSA committed to responsible marketing and communications practices — both offline and online

• Committed to disclosure in ALL online communications and marketing– Code of Ethics advocates for transparency – Aiding the public’s informed decision-making– Providing necessary information to inform consumers’

purchasing decisions– Disclosing information that may negate certain value points

of a product or service

Commitment in ActionCommitment in Action• PRSA letter to editor of USA TODAY, Aug. 18, 2011:

– “Even tech-savvy parents can be unaware that their children are being influenced online by marketers. It's for this reason that the Public Relations Society of America strongly supports the Federal Trade Commission's effort to update its online advertising disclosure guidelines …. Whether marketing to children or adults, we have a responsibility to ensure consumers have the necessary information to make informed decisions regarding their online activities and privacy.”

Final CommentsFinal Comments• PRSA strongly committed to principle of

transparent online marketing and comms

• PRSA members abide by industry-leading Code of Ethics

• PRSA Code of Ethics as industry’s self-regulation– Has succeeded for more than 60 years

Final RecommendationsFinal Recommendations

• FTC should hold public workshop to obtain full input from all stakeholders

• PRSA can be viable partner for FTC in discussions of online marcomms disclosure

Other Comments to FTC

• Nature of commentators• Common themes presented• Issues presented to FTC

?? Questions ??The FTC to Update Guidance for Online Advertising:

What Does the Future Hold?

Rich Cleland, Assistant Director, FTC Division of Advertising PracticesAnthony E. DiResta, Partner, Winston & Strawnadriresta@winston.com; (202)282-5782Keith Trivitt, Associate Director of Public Relations, PRSA; Tw: @KeithTrivittJoe Chernov, VP of Content Marketing, EloquaTw: @jchernov