Updated July 16, 2016
If you are a blogger or site owner in the U.S. and you are making money in any way, or if you are receiving free products or services for giveaways, reviews or the like, you should be concerned about this issue. In short, make sure you are properly disclosing in your posts.
Things I’ll cover in this post:
- What is a disclosure?
- Some things you should know
- Why do we have to disclose?
- My takeaways from the FTC’s report
- Sometimes it’s acceptable to link to the full disclosure, but…
Disclaimer: I am not a lawyer and this should not be considered legal advice. You should seek appropriate counsel for your own situation. And please note, this post is directed toward readers in the United States. If you are conducting business outside the United States, I highly encourage you to find and understand your obligations regarding disclosure.
What is a disclosure?
A disclosure provides a reader all necessary and relevant information regarding a purchase or promotion so they can make a well-informed decision. It’s “the fine print.”
I wrote this post after reviewing the .com Disclosures: How to Make Effective Disclosures in Digital Advertising released March 2013 by the Federal Trade Commission (FTC).
Update: To address lingering questions, the FTC has since published additional resources.
In December 2015, the FTC published Native Advertising: A Guide for Business. Of particular usefulness are the 17 examples of common scenarios encountered by bloggers and online site owners.
In May 2015, the FTC released a list of frequently asked questions that shed more light on proper disclosures. It addresses specific questions regarding bloggers, sharing on social media, how to word & where to put disclosures, affiliate marketing and much more.
Why do we have to disclose?
The FTC wants to make sure business is conducted fairly.
The FTC has enforced and will continue enforcing its consumer protection laws to ensure that products and services are described truthfully online, and that consumers understand what they are paying for. These activities benefit consumers as well as sellers, who expect and deserve the opportunity to compete in a marketplace free of deception and unfair practices.
Some things you should know
- I will not address every point covered in the document and it’s very possible some of them will apply to you so I highly encourage you to read the whole document yourself.
- If you think the FTC is all talk and no bite, one look at their list of Cases and Proceedings should change your mind. They are paying attention. Some cases of interest to online site owners are Warner Brothers and their campaign with online influencers and Lord & Taylor and their work with Instagram influencers,
- There are multiple examples of proper disclosures in the Appendix of the report which are very helpful. Update: Additional examples and scenarios are included in the subsequently published Native Advertising: A Guide for Business and FAQ page as well.For example, Example 21 describes a common blog post in which the disclosure is included at the end of the post, but is not sufficient. According to this example, many bloggers who simply put a disclosure statement at the end of a post with ads, sponsorships or affiliate links are doing it incorrectly. Take a look and note the commentary at the top:
The blogger in this example obtained the paint she is reviewing for free and must disclose that fact. Although she does so at the end of her blog post, there are several hyperlinks before that disclosure that could distract readers and cause them to click away before they get to the end of the post. Given these distractions, the disclosure likely is not clear and conspicuous.
My takeaways from the FTC’s report
Overall, disclosures must be “clear and conspicuous” both on a computer screen or on a mobile device. In addition, you must disclose on microblogging such as Twitter (see Appendix for specific examples). There is no set standard or format for disclosures but here are some general guidelines:
- Your disclosure should be obvious and unavoidable.
- It should be placed in close proximity to the “triggering item” (such as an affiliate link).
- It should not get buried in or covered up by text, banner ads or other graphics.
- It should not get separated from the “triggering item” by unrelated information or graphics. For example, a standard disclosure in your footer may not be sufficient if your footer is separated from your post. Or, if your disclosure is placed in another section of your site (say your sidebar), many times it will get separated by unrelated information when it’s being read on a mobile device.
- “Disclosures must be effectively communicated to consumers before they make a purchase or incur a financial obligation. Where advertising and selling are combined on a website or mobile application — that is, the consumer will be completing the transaction online — disclosures should be provided before the consumer makes the decision to buy, e.g., before clicking on an “order now” button or a link that says “add to shopping cart.”
- It should not be placed apart from links that might take the reader away from the site before seeing the disclosure. (See Example 21 above.)
- If getting to the disclosure requires scrolling (on mobile devices too), you should “use text or visual cues to encourage consumers to scroll” to find the disclosure.
- It should not be located in a place that readers typically do not look on a screen.
- Simply including a disclosure somewhere in the post does not necessarily mean it meets the “clear and conspicuous” standard. If there’s a reasonable chance the reader won’t see it, it’s not sufficient. (Again, see Example 21 above.)
Sometimes it’s acceptable to link to the full disclosure, but…
If you cannot reasonably include your full disclosure near the “triggering claim,” you may link to a page where the full disclosure is displayed. However:
- The link to the disclosure page should be near the “triggering item.”
- The link to the disclosure page should be obvious & unavoidable.
- The link to the disclosure page should not be an icon, symbol or abbreviation.
- “Hyperlinks that simply say ‘disclaimer,’ ‘more information,’ ‘details,’ ‘terms and conditions,’ or ‘fine print’ do not convey the importance, nature, and relevance of the information to which they lead and are likely to be inadequate.”
- The link should look the same as all the other links on your site (i.e. the same color, font size, underlined or not, etc.).
- The page containing the full disclosure should be easy to navigate and the disclosure itself should be immediately visible.
- Do not use “blockable pop-ups” to house your disclosure.
I want to say again, I am not a lawyer nor do I claim any expertise in this area at all so if you have specific questions, I will probably refer you back to the FTC report, the Native Advertising: A Guide for Business or the FAQ page.
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