The Florida Elections Commission has decided a mayoral candidate’s ads on Google and Facebook appear to violate the state’s election law because they don’t include a disclaimer that indicates who bought them. Read the rest of this national story.The candidate’s campaign, however, argues that the messages in question aren’t technically ads, but rather links to ads, and that it doesn’t pay for them unless a Web user clicks on them. When that happens, it says, the person is taken to a Web site that provides the appropriate disclosures.
The online ads are modeled on those the presidential candidates ran last year. But, while both national and local politicians are stepping up their digital-ad spending, the overall sums remain minuscule: Of some $4.8 billion spent on political advertising in 2008, online media accounted for just $20 million, most of it going to search ads, according to research firm Borrell Associates.
But analysts say online ads could become a more crucial part of political campaigns, and the Florida dispute is likely to set a precedent for how state and local politicians advertise on the Web.
“It becomes a de facto restriction on political speech on search engines and things like Twitter and Facebook,” says Mike Zaneis, vice president of public policy for the Interactive Advertising Bureau, an industry group that represents more than 350 online publishers, including Google, Yahoo, Time Warner’s AOL and Microsoft. “It really becomes a scary precedent.”
The Florida candidate, Scott Wagman, is in a 10-way race for mayor. A local businessman who hasn’t held a political office in St. Petersburg, Mr. Wagman turned to the Web and social-networking sites to help boost his name recognition in the city by using cost-effective targeted ads, says Mitch Kates, his campaign manager.
The campaign bought ads on Google to appear when users searched for the names of his opponents and ads on Facebook to appear when users browsed the Web site.
State election regulators notified Mr. Wagman of the alleged violations last month. The campaign has pulled the ads and is considering its next step. It can either plead no contest to the violations and pay a minimal fee or risk going to a hearing and being found guilty, and face thousands of dollars in fines per ad, says Mr. Kates. He says the campaign also is wary of setting a precedent with its response, and is contacting Internet companies and lawyers for advice.
“There is too much unknown on our part right now,” adds Mr. Kates. “The irony of it is that it feels like we are being punished for being an efficient and an effective campaign.”
Simone Marstiller, executive director for the Florida Elections Commission, said she can’t discuss a pending case “until the commission finds probable cause or, prior to that, the respondent waives confidentiality in writing.”
A spokesman for Google declined to comment. A spokesman for Facebook said in a statement: “If an advertiser in Florida wants to run a political campaign on Facebook, they would need to abide by laws in Florida.”
Among issues raised by the case is how to adapt rules established for traditional media to the online world. Federal election law requires candidates to disclose in their ads who is paying for them, and whether the candidate approved of the ad, so that voters know who stands behind it. Most states have similar laws.
The major difference lies in exemptions. Federal law says the disclosure requirements don’t apply to bumper stickers, pens and other small items in which the disclaimer’s inclusion would be impractical. The Florida law, which applies to state and local elections, has just two exceptions: campaign messages that are designed to be worn by a person and novelty items with a retail value of $10 or less.
“The comparison problem is that the federal law is flexible, and text messages which are 160 characters long or other online ads can be adapted to new technology,” says Ronald Jacobs, a lawyer with Venable LLP in Washington, who specializes in election law.
The case comes as digital media face broader challenges in accommodating the same sort of disclosures required in traditional advertising. This spring, the Food and Drug Administration sent letters to major drug companies, telling them their search ads needed to include risk information about their drugs in the text of the ad. Separately, the Federal Trade Commission is reviewing whether bloggers and other Web publishers that receive products from marketers and write about it are doing enough to make those relationships known, under truth-in-advertising guidelines.
“Call them growing pains of applying traditional offline rules to the online space,” says Mr. Zaneis of the Interactive Advertising Bureau.