Federal election rulemakers seem in no hurry to offer a solid opinion on whether small digital ads from political advertisers require a paid-for-by disclaimer, but Facebook is hoping for more guidance. The company in April sent the Federal Election Commission an advisory opinion request, following a similar request made by Google late last year. Facebook argues that candidates and other political advertisers should not have to include a disclaimer in their display ads on the social site.
"There is simply no basis to treat character-limited Internet communications any differently than other character-limited communications," argues Facebook's counsels in a letter dated April 26. Facebook is basing the argument on a Federal Election Campaign Act rule exempting small political ad formats like bumper stickers and pins from the disclaimer requirement.
An FEC spokesperson confirmed with ClickZ News that the letter from Facebook was received. The request for opinion has been reported by Talking Points Memo, which published the full letter.
"For example, the standard Facebook ad, which appears as 2.97 square inches on a typical laptop, is smaller than both the standard campaign button (3.98 square inches) and the standard campaign bumper sticker, neither of which includes a disclaimer," notes the request. Standard self-serve display ads on the site allow for 25 characters in the title and 135 in the main body, along with a small 110x80 pixel image.
Political advertisers have flocked to Facebook, particularly leading up to the 2010 midterm elections, and have already begun running 2012 campaign ads targeting likely supporters. At this point, most if not all political advertisers do not include a disclaimer in their Facebook ads, and it appears none has run into trouble with the federal law as a result. However, as the 2012 election season launches, digital media outlets like Facebook want to make sure ads on their sites don't violate laws or regulations.
A lack of disclaimer rules applying to Twitter, for instance, has led to some confusion. Indeed, although the company offers a variety of ad products, Twitter does not allow political advertisers to buy ads on the site, according to sources familiar with online political advertising.
"It would be very helpful if the FEC could develop a standard that the states could then follow," suggested Brian Franklin, communications director for Patrick Murphy, a Florida Democrat looking to unseat newly-elected tea party Republican Allen West. Murphy for Congress is among the earliest candidates to run 2012 campaign ads on Facebook.
"Every state has different requirement for disclaimers," when it comes to gubernatorial and state legislative candidates, said Franklin. "This is an issue, but it's more of an issue for states that have explicitly required disclaimers regardless of the medium - and in this case the medium doesn't support the disclaimer."
In the absence of clear guidance from the federal government, states including California, Maryland, and Florida have passed laws exempting Google text units and Facebook display ads from including paid-for-by disclaimers. Franklin was involved in getting the Florida law passed.
In its letter to the FEC, Facebook suggested that the agency correctly "concluded that political committees that purchased Google search ads would not violate [rules] by failing to include a disclaimer within the ad." The company refers to an October 2010 FEC advisory opinion that essentially allows Google to run ads for political advertisers without making a disclaimer about who paid for it in the ad. A URL of the paying group's website in the ad, and a full disclaimer on the ad landing page suffices.
However, that opinion did not put an end to the matter of disclosure in text ads. On the contrary, a lengthy and detailed discussion among FEC commissioners in the hopes of handing down an official opinion resulted in a non-decision. Google originally submitted a series of questions to the agency in August of last year, asking it to confirm that AdWords ads are exempt from disclaimer requirements under the "small items" exemption. FEC commissioners did not achieve the necessary number of votes to officially answer Google's inquiry. Instead they passed a confusing motion stipulating that, while the FEC could not reach the required number of votes to officially answer Google's questions, the search company would not violate regulations if political ads included the sponsor's site URL and linked to a page including full disclosure. More than one FEC commissioner voiced displeasure with the process.
"I'm not going to vote for it because I don't think it's the proper way to handle the request," said Commissioner Caroline Hunter.
Facebook supported Google's 2010 request that political ads be exempt from disclaimer requirements, as did Aristotle International, a large provider of voter data. According to the FEC spokesperson, both Google and Facebook's opinion requests have been handled by the same law firm.
It remains unclear whether the FEC actually made any official conclusion about Google AdWords, as Facebook suggests in its missive. For instance, an explanation on the FEC site regarding ad disclaimer exemptions points to a Code of Federal Regulations document revised January 1, 2011. That document lists several media types exempt from disclaimers - from buttons and pens to skywriting and water towers. Yet, it makes no mention of the Internet or related digital communications platforms.
The explanation also links to a document referring to a 2002 opinion concluding that "SMS technology places similar limits on the length of a political advertisement as those that exist with bumper stickers."
The FEC spokesperson told ClickZ today the commission has received no other requests for advisory opinions on digital ad disclaimers besides those from Google and Facebook.
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Kate Kaye was Managing Editor at ClickZ News until October 2012. As a daily reporter and editor for the original news source, she covered beats including digital political campaigns and government regulation of the online ad industry. Kate is the author of Campaign '08: A Turning Point for Digital Media, the only book focused on the paid digital media efforts of the 2008 presidential campaigns. Kate created ClickZ's Politics & Advocacy section, and is the primary contributor to the one-of-a-kind section. She began reporting on the interactive ad industry in 1999 and has spoken at several events and in interviews for television, radio, print, and digital media outlets. You can follow Kate on Twitter at @LowbrowKate.
March 19, 2014