The New Requirements: REG 2011-02
The FEC finally approved the regulations in question after considering similar administrative pronouncements over the past decade. At its Thursday, December 1 meeting, the FEC voted 5-0 to expand the disclaimer requirements to “internet public communications,” which are defined to include “any public communication over the internet that is placed for a fee on another person’s Web site, digital device, application, or advertising platform.” This definition encompasses communications such as paid ads featured on websites, social media networks, streaming platforms, mobile applications, and wearable devices. Currently, FEC regulations only mandate disclaimer notices for those communications “placed for a fee on another person’s Web site.” Going forward, any internet public communication will need to include a disclaimer that: (1) may be viewed without any action from the viewer; (2) be of a sufficient size that it is clearly readable; and (3) displayed in a reasonable color contrast so that the viewer can see it.
The expansion of the disclaimer requirements to internet public communications under the FEC’s new regulations also extends to audio and video content distributed on the web. As such, disclaimers must appear on internet videos for four seconds, or be included in the audio component of the internet message. “Stand-by-your ad” requirements applicable to radio and television advertising will continue to not apply to internet public communications.
In its adopted regulations, the FEC also included a de minimis exception to its disclaimer requirements for internet public communications, rooted in the same logic for exempting small items (like buttons, bumper stickers, pins, and pens) and impracticable items (like skywriting and apparel) from traditional disclaimer requirements. This “small and impracticable” exception will apply to internet public communications where such a disclaimer would subsume the advertisement itself. Additionally, the FEC carved out “adapted disclaimer” requirements for advertisements where the full disclaimer would “occupy more than 25 percent of the communication due to character or space constraints intrinsic to the advertising product or medium.” Any adapted disclaimer will still have to clearly identify the sponsor of the communication in question, but can use alternative indicators or mechanisms – such as a pop-up screen – to comply with the broader disclaimer obligations.
Upcoming Rulemaking Efforts
In addition to adopting REG 2011-02, the FEC also introduced a Proposed Notice of Rulemaking for controversial proposed regulations that would extend the same internet public communication disclaimer rules to communications “promoted for a fee” on another person’s website, digital device, application, or advertising platform. The phrase “promoted for a fee” was initially included in the regulatory language under consideration by the FEC for adoption earlier this month, but the ambiguity of the term caused such a stir in the leadup to the Commission’s meeting that it was removed from the language under consideration for adoption with REG 2011-02. The proposed regulations concerning internet public communications that will be “promoted for a fee” are designed to cover promoted influencer advertisements on social media and even traditional Facebook posts boosted through paid promotional tactics. Given the potentially broad-ranging impact of FEC action in this space, the Commission will now be holding a separate comment period open through January 9, 2023 to solicit input from the public.
The FEC’s newly adopted regulation places yet another compliance hurdle in the path of candidates, political committees, and other political stakeholders who seek to communicate with voters through the internet and social media platforms. The expansion of FEC regulation in this space will be interesting to watch as the Commission considers additional rulemaking next year in advance of the 2024 presidential elections. Individuals and groups looking to influence federal elections in the coming cycles should therefore keep a watchful eye on FEC activity in this space and ensure they construct effective internal compliance frameworks governing online political advocacy and engagement.