The 2000s brought the Internet and influencers to advertising law


The arrival of the year 2000 brought not only the panic that the Internet would freeze over the new numbers marking the start of a new century, but also the shift from traditional advertising (radio / TV / print) to advertising. in line.

Certainly the 2000s were a decade of change as online advertising exploded and, as a harbinger of things to come, the online environment became fertile ground for both innovative ways. to communicate with consumers or, for the less scrupulous, to take advantage of reckless consumers. . Low barriers to entry have allowed disruptors to enter the digital space and have forced traditional traders to compete in this space or be left behind.

During this decade, the Federal Trade Commission (FTC) added to the policy statements issued by the Commission that were hallmarks of the 1970s and 1980s and issued important trade guidance documents describing how general principles of law of advertising apply to digital advertising issues, as well as industry-specific advice on justifying advertising claims.

In 2000, the FTC published Advertising on the Internet: The Rules of the Road as well as Dot Com Disclosures: Information About Online Advertising, which provides detailed advice on how to make effective disclosures in the online environment and was updated in 2013 to reflect new trends in advertising and marketing on new platforms, especially mobile devices. Unlike official industry guides released after public notice and comment, Dot Com Disclosures was published as an informal business guide that has proven to be an agile and instrumental tool setting the rules of the road.

Without specific online advertising laws, the FTC and the National Advertising Division (NAD) have used general principles of advertising law to protect consumers and provide a level playing field for businesses.

It was also around this time that the law of privacy and the law of publicity began to intersect. The online environment has become fertile ground both for innovative ways to communicate with consumers, but also for the large-scale collection of vast amounts of data from consumers as they surf the Internet.

Reflecting its concern about the practices of website operators and marketers collecting information directly from children, Congress passed the Children’s Online Privacy Protection Act (COPPA) and, in 2000, the Rule of Law. the FTC implementing COPPA entered into force. COPPA regulates the online collection of personal information from children under the age of 13, including the requirement of verifiable parental consent for the collection of such data.

Privacy concerns have stumbled several reputable companies. For example, one of the FTC’s first privacy measures involved pharmaceutical giant Eli Lilly and its monthly email reminders to Prozac customers alerting them that it was time to refill their prescriptions. Lilly has decided to end this monthly email reminder and has sent out an email to all subscribers alerting them to the change. Due to a coding error, the “To” line was not hidden and all email recipients could see the email addresses of all subscribers. The FTC determined that this inadvertent coding error violated FTC law because Lilly had indicated in its privacy policy that it would “protect” the personal information of its consumers. The FTC has determined that claims in public statements, such as privacy policies, must be truthful, not misleading, and justified, like any advertising claim.

Another FTC enforcement action was directed against the National Research Center for College and University Admissions (NRCCUA), a student survey company. The FTC has reviewed the company’s express privacy policy statements, an action that foreshadowed the FTC’s focus on what are now called “dark models.” The FTC discovered that the NRCCUA falsely stated that the survey data it collected would only be shared with colleges and universities, when in fact it was sold to advertisers who then marketed their products and student services.

The 2000s demonstrated the value that self-regulation brings to the advertising industry. NAD decisions in the early 2000s focused on new ways in which advertising was used to mislead consumers, also foreshadowing the “dark models” that are the subject of current regulatory scrutiny. NAD’s first actions regarding online advertising did not come from the challenges of competitors but from its monitoring efforts, as it identified advertising trends and provided advice to the industry.

The NAD rulings provided guidance on clear and visible disclosures in the new banner ad format and, relying heavily on FTC guidelines and general principles of advertising law, provided updated examples. on how to advertise in emerging and new formats, guiding the industry on best practices.

One of the earliest instances of NAD surveillance in this online environment involved a dark pattern of an ad banner. In 2005, NAD examined advertising promoting spyware services in banner ads that appeared to be a Microsoft Windows warning message. NAD recommended that the advertisements be modified to clearly and visibly reveal that the post was an advertisement rather than a technical warning.

The FTC closed the decade in 2009 with revised guides to the use of endorsements and testimonials in advertising, which reflected the basic principles of truth in advertising that endorsements should be honest and not misleading and that a material link between an endorser and a merchant that consumers would not expect to be disclosed, updated to include examples applying the principles to social media marketing.

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