FTC Updates Search Engine Disclosure Guidelines
The Federal Trade Commission (“FTC”) has sent letters to two dozen search engine companies, warning them that failure to distinguish advertising from natural search results could be a deceptive practice.
The letters note that in recent years, paid search results have become less distinguishable as advertising, and the FTC is urging the search industry to make sure the distinction is clear.
The letters were sent to what the FTC considered the primary general-purpose search engines, including AOL, Ask.com, Bing, Blekko, DuckDuckGo, Google, and Yahoo. They also sent out letters to 17 other search engines that specialize in specific market areas of shopping, travel, and local businesses that also display advertising.
In 2002, the FTC's Bureau of Consumer Protection advised search engines about the potential for consumers to be deceived, in violation of Section 5 of the FTC Act, "unless search engines clearly and prominently distinguished advertising from natural search results," Mary K. Engle, associate director at FTC's division of advertising practices, said in the letter.
The letters are the latest example of the FTC’s work to update its guidance for digital advertisers, which also includes recent updates to the Dot Com Disclosures and Endorsements and Testimonials Guides.
The updated guidance emphasizes the need for visual cues, labels, or other techniques to effectively distinguish advertisements, in order to avoid misleading consumers. It makes recommendations for ensuring that disclosures commonly used to identify advertising are noticeable and understandable to consumers.
The FTC suggests that search engines should use prominent shading with a clear outline, a prominent border, or both.
“Accordingly, we recommend that in distinguishing any top ads or other advertising results integrated into the natural search results, search engines should use: (1) more prominent shading that has a clear outline; (2) a prominent border that distinctly sets off advertising from the natural search results; or (3) both prominent shading and a border.”
In the letters, the FTC addressed the different technologies that consumers use to search, including tablets and smart phones, as well as the types of platforms search engines use to display and promote information, such as apps and social media. It is also advising that if search results are delivered verbally, there must be an audio disclosure to go along with it that states it is paid advertising, and one that the user can easily hear and recognize as being a paid ad.
“Online search is far from static, and continues to evolve. Indeed, in the past few years, the growths of social media and mobile apps, and the introduction of voice assistants on mobile devices, have offered consumers new ways of getting information. Regardless of the precise form search may take in the future, the long-standing principle of making advertising distinguishable from natural results will remain applicable.”
The letters note that the principles of the original guidance still apply. In other words, regardless of the actual embodiment that search takes now or in the future, paid search results and other forms of advertising should be clearly distinguishable from natural search results.
"We recommend that you review this letter and make any necessary changes to conform to this guidance," the FTC said.
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This article is for information purposes only. It is not intended to be and should not be relied on as legal advice for any particular matter.