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The essential

  • The FTC is revising its Dot Com Disclosure Guides to address dark patterns and other forms of digital deception.

  • FTC plans to crack down on misleading disclosures and other forms of digital deception; marketers should review their online disclosure practices to ensure they comply with the law.

  • Comments are due no later than August 2, 2022.

The Federal Trade Commission (FTC) is seeking public comment on proposed revisions to its guide, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the Dot Com Disclosure Guides). Last year, the FTC announced a new enforcement policy to crack down on illegal dark schemes, such as tricking users, tricking them into signing up for subscription plans, or making it impossible to cancel the pending billing and unauthorized charges. The FTC’s updates to the Dot Com Disclosure Guides should address dark schemes and other deceptive tactics on the Internet.

The Dot Com Disclosure Guides

First published in March 2013, the Dot Com Disclosure Guides detail information companies should consider when developing advertisements for online media to ensure they comply with the law. The Dot Com Disclosure Guides were intended to provide guidance to marketers on how to make disclosures that are clear and visible and not misleading. However, according to the FTC, marketers have used the advice to justify deceptive online practices, such as using hyperlinks to bury disclosures, which can expose consumers to financial fraud, intrusive surveillance and to other harm.

Relevant questions for comments

The FTC plans to update the guidelines, emphasizing that “online tricks and tricks” are prohibited. The FTC is seeking public comment on the following:

  • Use of sponsored and promoted advertisements on social networks;

  • In-game and virtual reality advertising, and micro-targeted advertising;

  • Use of dark patterns: manipulative user interface designs on websites and mobile apps and in digital advertising that pose unique risks to consumers;

  • Whether the current guidelines sufficiently address advertising on mobile devices;

  • If additional guidance is needed regarding multi-party sales agreements involved in e-commerce and affiliate marketing agreements;

  • How guidance on the use of hyperlinks can be strengthened to better protect consumers;

  • The relevance of online disclosures when consumers need to browse multiple web pages.

Request for public comments

The FTC has sought public comment on possible revisions to its guidelines on preventing digital deception. Companies have until August 2, 2022 to file these comments, and Davis+Gilbert will be happy to assist anyone who wishes to file comments.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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