Commission seeks comments on internet disclaimer notices (2016)
On October 18, 2016, the Commission published an Advance Notice of Proposed Rulemaking (ANPRM) on Internet communication disclaimers. The Commission will hold a hearing on these issues on February 1, 2017. Comments and/or requests to testify at the hearing must be received on or before December 19, 2016.
Under the Federal Election Campaign Act (the Act) and Commission regulations, a disclaimer is a statement that must appear on certain communications in order to identify who paid for the communication and, where applicable, whether the communication was authorized by a candidate. With some exceptions, the Act and Commission regulations require disclaimers to accompany public communications that are made by a political committee, expressly advocate the election or defeat of a clearly identified federal candidate, or solicit contributions. 52 U.S.C. § 30120(a); 11 CFR 110.11(a). Political committees must also include a disclaimer on email sent to more than 500 recipients, as well as on their internet websites.
While the term "public communication" does not usually include Internet communications, it does encompass communications placed for a fee on another person’s website. 11 CFR 100.26. Therefore, such communications are subject to disclaimer requirements as well.
For those communications requiring disclaimers, each disclaimer "must be presented in a clear and conspicuous manner, to give the reader, observer or, listener adequate notice of the identity" of the communication’s sponsor. 11 CFR 110.11(c)(1).
On October 13, 2011, the Commission published an ANPRM seeking comment on whether and how to revise 11 CFR 110.11 concerning disclaimers on certain Internet communications. The Commission is reopening the comment period in light of legal and technological developments since the notice was published. Specifically, the Commission seeks additional comments addressing disclaimers on character-limited internet communications discussed since publication of the ANPRM in advisory opinion request 2013-18 (Revolution Messaging) (asking whether "banner ads" viewed on mobile phones required disclaimers) and MUR 6911 (Frankel) (considering whether candidates'' and parties'' Twitter profiles and tweets required disclaimers).
The Commission also notes that at least two states have disclaimer regulations that address small Internet advertisements and seeks comments on experiences complying with these and other disclosure regimes. In addition, the Commission seeks comments that address the ways that campaigns, political committees, voters and others are using, or may begin to use, the Internet and other technologies to disseminate and receive campaign and other election-related material. The Commission is interested in comments that address possible modifications of the disclaimer requirements, including technological alternatives, and seeks comments addressing advertisements on Internet-enabled applications and devices. Finally, the Commission seeks comments that address possible regulatory approaches that could minimize the need for serial revisions of Commission regulations.
All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission’s website, reference REG 2011-02, or by email to InternetDisclaimers@fec.gov. Alternatively, commenters may submit comments in paper form, addressed to the Federal Election Commission, Attn: Neven F. Stipanovic, Acting Assistant General Counsel, 999 E Street, N.W., Washington, DC 20463. All comments must include the full name, city, state, and zip code of each commenter or they will not be considered. The Commission will post all comments to its website at the conclusion of the comment period.
Resources:
- Federal Register notice (October 18, 2016) [PDF]