On December 1, 2022, the Commission approved a final rule and explanation and justification revising the definition of “public communication” and the requirements concerning disclaimers on certain public communications placed for a fee on the internet. The regulations clarify how the disclaimer requirements apply to various types of internet communications and allow certain internet communications to display disclaimers through alternative technological means.
The final rule takes effect March 1, 2023.
The Federal Election Campaign Act (the Act) and Commission regulations require that a disclaimer appear on certain communications to identify the payor and, where applicable, whether the communication was authorized by a candidate. With some exceptions, disclaimers are required on public communications that:
- Are made by a political committee;
- Expressly advocate the election or defeat of a clearly identified federal candidate; or
- Solicit a contribution.
Additionally, disclaimers must appear on political committees’ websites and “electronic mail of more than 500 substantially similar communications.” Every disclaimer “must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity of the person” that paid for the communication.
Commission regulations at 110.11(b) contain general content requirements for disclaimers, as well as specific requirements for printed, radio, and television communications at 110.11(c). The regulations also include exceptions for certain small items (e.g., pins and bumper stickers) and where including a disclaimer is impractical (e.g., skywriting).
In 2002, Congress enacted the Bipartisan Campaign Reform Act (BCRA). In implementing BCRA, the Commission promulgated a new regulatory definition of “public communication” that mirrored the statutory language but added that “[t]he term public communication shall not include communications over the internet.” In Shays v. FEC (337 F. Supp. 2d 28, 65 (D.D.C. 2004)), the court found Congress intended all other forms of general public political advertising to be covered by the term “public communication.”
In 2006, the Commission amended the definition of “public communication” to include “internet communications placed on another person’s Web site for a fee.” The Commission explained that the revised definition of “public communication” also affects, among other provisions, the requirement to include disclaimers on certain communications.
In 2011, the Commission published an Advance Notice of Proposed Rulemaking soliciting comment on whether to modify disclaimer requirements for certain internet communications or to provide exceptions. In 2016 and 2017, the Commission sought additional comments in light of ongoing legal, factual, and technological developments in the area. On March 26, 2018, the Commission published a Notice of Proposed Rulemaking (NPRM) seeking comment on two proposed revisions to the disclaimer rules (Alternatives A and B) intended to clarify the disclaimer requirements for various types of paid internet public communications, and when a paid internet public communication could employ a modified approach to the disclaimer requirements.
On June 27-28, 2018, the Commission held a hearing on the proposed regulatory changes. Witnesses testified on issues relating to the definition of “public communication,” how internet advertising has evolved and how it is used, incorporating flexibility in the regulations to accommodate new technologies, and how internet communications are different from print and broadcast media. Finally, in 2019 the Commission sought public comment on two alternative proposals (Proposals A and B).
Revised 11 CFR 100.26 – Public communications
After taking into consideration the comments received, the Commission is revising the definition of “public communication” to:
- Clarify how it applies to general public political advertising over the internet;
- Better accommodate technological changes; and
- Reflect the range of media through which paid internet communications can and will be sent and received.
In doing so, the Commission intends to regulate only communications placed for a fee through an entity ordinarily owned or controlled by another person, analogous to the forms of “public communication” already included in the definition. The Commission is not otherwise altering its existing interpretation of the term “public communication” or “general public political advertising.”
The new definition of “public communication” includes “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” This new definition implements the Commission’s goals of including the range of current internet media and being adaptable to the development of future technologies.
New 11 CFR 110.11(c)5 – Specific requirements for internet public communications
The Commission is adding a new paragraph to 11 CFR 110.11 that includes a definition of “internet public communication” that is consistent with the revised definition in section 100.26. It imposes specific disclaimer requirements analogous to those for print and broadcast media, while also accounting for the unique characteristics of internet public communications. The new internet disclaimer provisions do not impose the stand-by-your-ad requirements applicable to radio and television advertisements.
Internet public communications with text or graphic components
The new regulation requires any internet public communication with text or graphic components to include a written disclaimer that “can be viewed without taking any action.” It sets forth requirements for text size and contrast that are similar to those for other media, but account for the variability and flexibility of internet communications.
Specifically, the text of the disclaimer must be large enough “to be clearly readable by the recipient of the communication.” For instance, disclaimer text that is “at least as large as the majority of other text in the communication satisfies this requirement.” The disclaimer must also “be displayed with a reasonable degree of color contrast between the background and the disclaimer’s text. A disclaimer satisfies this requirement if it is displayed in black text on a white background, or if the degree of color contrast is no less than the color contrast between the background and the largest text used in the communication.”
Internet public communications with only audio or video components
For an internet public communication that contains only an audio component (no video, graphic, or text components), new paragraph (c)(5)(iii)(E) provides that the disclaimer must be included in that audio component so that a recipient need not take any additional action beyond listening to the advertisement to obtain the disclaimer information. This is similar to the existing requirement that radio communications must include audio disclaimers. For an internet public communication in which the disclaimer is displayed within a video, the disclaimer must be visible for at least four seconds and appear without the recipient taking any action. The new rule is similar to the longstanding rule for television communications, which also require disclaimers to appear for at least four seconds.
New 11 CFR 110.11(g) – Adapted disclaimers
After considering the comments received, the Commission has decided to provide an adapted disclaimer option for internet public communications. New paragraph 110.11(g) sets forth an alternative that applies when the full disclaimer “cannot be provided or would occupy more than 25% of the communication due to character or space constraints intrinsic to the advertising product or medium.” The new paragraph makes clear that the time or space available for a disclaimer depends on the limitations of the medium or technology in a particular advertisement. The specific percentage serves as a bright-line rule that provides sponsors of internet publication communications clear guidance as to when an adapted disclaimer may be used.
The new 11 CFR 110.11(g) defines an adapted disclaimer as:
“A clear statement that the internet public communication is paid for, and that identifies the person or persons who paid for the internet public communication using their full name or a commonly understood abbreviation or acronym by which the person or persons are known, which is accompanied by: (1) an indicator and (2) a mechanism”
An indicator is defined as:
“Any visible or audible element associated with an internet public communication that is presented in a clear and conspicuous manner and gives notice to persons reading, observing, or listening to the internet public communication that they may read, observe, or listen to a disclaimer satisfying the requirements of paragraphs (b) and (c)(1) of this section through a mechanism. An indicator may take any form including, but not limited to, words, images, sounds, symbols, and icons.”
A mechanism is defined as:
“Any use of technology that enables the person reading, observing, or listening to an internet publication communication to read, observe, or listen to a disclaimer satisfying the requirements of paragraphs (b) and (c)(1) of this section after no more than one action by the recipient of the internet public communication. A mechanism may take any form including, but not limited to, hover-over text, pop-up screens, scrolling text, rotating panels, and hyperlinks to a landing page.”
The new rules take effect March 1, 2023.
11 CFR 100.26
11 CFR 110.11
Communications; advertising; disclaimers
52 U.S.C. 30101(22)
52 U.S.C. 30120
Publication and distribution of statements and solicitations