Last month, the Federal Trade Commission (FTC) updated its digital advertising guidelines to underline the fact that the same rules apply to mobile advertising, sites and apps as online (and offline). No big surprise, since the FTC has already taken action against several mobile publishers for deceptive advertising. What is really interesting is that the FTC places an obligation on Webmasters of PC sites and PC advertisers to ensure that any disclosures relating to sign-ups, purchases etc. must be explicit, obvious and readable, even if the viewing device is mobile and has a small screen.
The new version of .com Disclosures: How to Make Effective Disclosures in Digital Advertising doesn’t exactly decree that companies must have a mobile site or a responsive-design site, though it’s strongly suggesting that you should have, but it is saying that Web pages and ads that are advertising goods and services must be designed to make sure that all essential details are clear to people viewing on a mobile device – i.e. companies must take steps to make their sites more mobile-friendly.
“Account for viewing on different devices:
Most Webpages viewable on desktop devices may also be viewable on smartphones. Therefore, unless a Website defaults to a mobile-optimized (or similarly responsive) version, advertisers should design the Website so that any necessary disclosures are clear and conspicuous, regardless of the device on which they are displayed. Among many other considerations, if a disclosure is too small to read on a mobile device and the text of the disclosure cannot be enlarged, it is not a clear and conspicuous disclosure. If a disclosure is presented in a long line of text that does not wrap around and fit on a screen, it is unlikely to be adequate.”
In a footnote to the same paragraph, the FTC adds:
“Website operators can identify visitors who are using mobile devices to visit their Websites and display a version of the site that has been designed or “optimized” to enable those consumers to view the site more easily.”
The underlining principle of the FTC’s guidelines is that there must be no doubt in the consumer’s mind what they are paying for or signing up to and how any personal data submitted will be handled (N.B. mobile privacy is a massive area, and one upon which the FTC is becoming increasingly focused, particularly as it relates to mobile apps and/or children and requires a blog post of its own). It is up to the Website owner to ensure that nothing is hidden, through deceit or ignorance, from the consumer just because they choose to browse with a mobile device.
If a claim, e.g. “this app cures acne” (we didn’t make this up, see this FTC case in 2011); “only $9.99”; “win a free iPad”, needs to be clarified/substantiated/explained, then the disclosure must be “clear and conspicuous”, i.e. impossible to miss, on a mobile device. This means the disclosure can’t be too small to read on a mobile device; nor hidden in a different column off-screen, requiring scrolling left or right and, preferably, not up or down; nor hidden in a pop-up (which may not work) or a different Web page; or uses technology such as Flash (that doesn’t work on Apple and other devices); and so on; and should be seen before the consumer reaches the “order now”, “add to shopping cart” or “sign-up” button/box. If it is not possible to include the full disclaimer on the page, screen, ad; then it should be explicit that there is a must-read disclaimer elsewhere, with a big, obvious link to click.
If disclosures are not obvious to a consumer who then signs up to your messaging service, buys your product, downloads your app, using a mobile device, then they have grounds to claim that the sign-up or purchase is unfair. This means that you could face legal action from the FTC or a class-action law suit – both of which are proven to be very real and significant threats.
As Linda A. Goldstein, head of advertising, marketing and media division lawyers Manatt, Phelps & Phillips warns on InsideCounsel:
“…The FTC has sent a message that space constraints and small screens are no excuse for the failure to make adequate disclosures. The overarching message is clear — advertisers will either have to find a way to make the required disclosures clearly and conspicuously, notwithstanding space and screen constraints, or refrain from advertising their offer in that particular medium or platform.
“…There are, however, a number of new directives, examples and warnings relating specifically to digital and mobile media to which brands should pay particular attention, as they may require immediate changes in the way brands are currently structuring and conducting their digital campaigns.
“The FTC strongly encourages optimization of Websites for mobile devices. The agency recognizes that because of their small screens, smartphones and tablets often require the user to scroll vertically or horizontally. Placing the disclosure in a different column from the claim it modifies may therefore result in the consumer missing the disclosure entirely. The FTC warns that unless a Website defaults to a mobile-optimized version, it is the advertiser’s responsibility to ensure that the disclosures are clear and conspicuous regardless of the device on which they are displayed, and that if the disclosure is too small to be read on a mobile screen or presented in a long line of text that does not wrap around and fit on the screen, the disclosure will likely not be deemed adequate.”
In essence, the FTC guidelines force any Website/advertiser that sells any product of service or signs anyone up for anything to consider how the site/ad (or relevant parts of the site) performs on a mobile device. It changes the question from “Do we care if our site performs badly on a mobile device?” to: “Could we get sued because our site unfairly hides essential details from mobile customers?” It moves the debate from sales and marketing to compliance.
The FTC guidelines draw special attention to Websites and ads that use a multiple-column design (which is common). To fit a static PC site on to a mobile device, will either reduce the size of the site, making the text very small or require the viewer to zoom in on one column. As explained in the FTC’s graphic examples, this is likely be the column that makes the trigger claim “this app cures acne”; “only $9.99”; “win a free iPad” and/or where the “buy now” of “sign up” button is found. If a disclaimer is placed in an adjacent column it won’t be seen without scrolling left or right:
“Mobile devices also present additional issues because a disclosure that would appear on the same screen of a standard desktop computer might, instead, require significant vertical and horizontal scrolling on a mobile screen. In evaluating placement, advertisers should also take into consideration empirical research about where consumers do and do not look on a screen.
“Because of their small screens, smartphones (and some tablets) potentially require horizontal, as well as vertical, scrolling. Placing a disclosure in a different column of a Webpage from the claim it modifies could make it unlikely that consumers who have to zoom in to read the claim on a small screen will scroll right or left to a different column and read the disclosure. Optimizing a Website for mobile devices will eliminate the need for consumers to scroll right or left, although it will not necessarily address the need for vertical scrolling.”
This all poses the question: is it easier to consider how each campaign, claim, product description and sign-up is appropriately placed within the static PC site design from now on – or is it easier to build a mobile site, or a mobile-responsive site, thus ensuring that all information on the site will display well on a mobile device from now on?
Perhaps all those companies that couldn’t be bothered to make their Website mobile friendly for the benefit of their customers will now do it for the benefit of the lawyers.
Also read: Five common compliance and privacy mistakes in mobile that could land you in trouble and lose you customers.
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