online advertising regulation

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Next week, I will be discussing regulatory issues for media companies with Eriq Gardner of the Hollywood Reporter (who covers legal issues on their must-read THR, Esq site) in a “Candid Conversation” hosted by Matrix Solutions (more information here, including a registration link).  The sponsor of this conversation consults on media advertising matters, so the content will likely be geared toward the impact of changes on the advertising industry.  While the conversation will cover structural media regulation issues, like broadcast ownership, the relationship between television and various multichannel video providers (both traditional, like cable and satellite television, and online), and similar matters, I think one of most interesting topics will be a discussion of the proposed regulation of tech platforms.  In thinking about that issue (about which we have written many times, including recent articles here and here), it occurs to me that such regulation could have a huge impact on the digital and social media giants that have arisen in the modern media world.

Much has been written, particularly in recent days, about the antitrust regulation to which these tech giants may be subject – with calls for action from both the political right and left (see, for instance, this article drawing parallels between the books recently written about this subject by Amy Klobuchar and Josh Hawley).  Even if such sweeping changes are not adopted, there are more targeted regulatory proposals that could have a direct impact on the advertising on these online platforms.  As we have noted before, advertising on online platforms is now estimated to constitute over 50% of the local advertising sales in virtually every geographic market.  Certainly, privacy regulation limiting the ability of companies to track users across various online platforms could affect such sales.  Less publicized has been the impact of Section 230 reform, which in at least one bill would exempt advertising from the protections afforded companies for the online content that they host.
Continue Reading Regulation of Online Platforms and the Effect on Advertising – Including Section 230 Reforms

There is nothing new about the FTC bringing enforcement actions based on deceptive advertising practices.  Those cases are the FTC’s bread and butter.  But in recent years the FTC has been pushing forward with cases that address the increasingly complex network of entities involved in marketing, including companies that collect, buy, and sell consumer information and play other behind-the-scenes roles in marketing campaigns.  The FTC has also taken a strong interest in deceptively formatted advertising, including “native” advertising that does not adequately disclose sponsorship connections.  A recent Court of Appeals decision highlights the potential for any internet company to be liable for a deceptive advertising campaign that it had a hand in orchestrating – even if the company itself does not create the advertising material.

The decision in this case, FTC v. LeadClick Media, LLC, comes from the U.S. Court of Appeals for the Second Circuit and is a significant victory for the FTC and its co-plaintiff, the State of Connecticut.  Specifically, the decision holds that online advertising company LeadClick is liable for the deceptive ads that were published as part an advertising campaign that it coordinated, even though LeadClick itself did not write or publish the ads.  In addition, the Second Circuit rejected LeadClick’s argument that its ad tracking service provided it with immunity from the FTC’s action under Section 230 of the Communications Decency Act (CDA).
Continue Reading Second Circuit Holds Marketing Campaign Organizer Liable Under FTC Act for Deceptive Representations of Its Marketing “Affiliates”

The Advertising industry recently published self-regulation guidelines for "behavioral advertising," i.e. advertising that is targeted to the user based upon data regarding that user’s activities across various Web sites.  The Federal Trade Commission has been urging the industry to develop such standards for some time.  These practices have also attracted considerable attention on Capitol Hill.  To…