In an article published today in Mobile Marketer (@MobileMktrDaily), I was asked about the top legal challenges that mobile marketers face. The first on my list was the challenge of making effective disclosures in the context of a mobile campaign. Shortly after the article was published, the FTC announced that they planning to update their “Dot Com Disclosures” guidance document, and hinted that the update could address this very issue.
The FTC first published the Dot Com Disclosures in 2000 in an attempt to advise online marketers about how to disclose material terms in a “clear and conspicuous” manner. In today’s press release, the FTC notes that the online world has changed dramatically since 2000 and that the FTC is seeking input about how the guidelines should be changed to address changes in technology. Among other things, the FTC asks about how the guidance should be modified to address mobile marketing and the limitations of mobile screens. Public comments are due by July 11, 2011.
This isn’t the first time regulators have struggled with the issue mobile disclosures. For example, recent settlements between the Florida Attorney General and some wireless providers included requirements about how price information has to be disclosed. We can expect the FTC to take a broader approach and consider disclosures of all types of material terms. Thus, the revised Dot Com Disclosures will likely have an impact on a broad range of mobile campaigns, not just those that require a payment.
While we wait for the FTC to issue new guidance, marketers should work closely with their legal team to ensure that they make disclosures in a way that is likely to survive regulatory scrutiny.