Back at the dawn of the commercial Internet era in 2002, the Federal Trade Commission provided guidance to search engines in terms of differentiating between true search results and advertisements. However, over the past 11 years, the FTC has determined that search results and advertisements have become less distinguishable from each other.
Accordingly, in correspondence recently sent to major search engines such as Google, Bing, Yahoo and AOL, the FTC has updated its 2002 guidance.
In its correspondence, the FTC explains that “consumers ordinarily expect that natural search results are included and ranked based on relevance to a search query, not based on payment from a third party.” And, to prevent confusion or even deception, “consumers should be able to easily distinguish a natural search result from advertising that a search engine delivers.”
The FTC tells the search engines in its correspondence that “clarity and prominence of advertising disclosure are key.”
Visual cues and text labels are suggested by the FTC.
As to the former, the FTC recommends that in differentiating top advertisements or other advertising results integrated into natural search results, there should be more prominent shading that contains a clear outline, a prominent border that distinctly sets off advertising from natural search results, or both.
With respect to the latter, search engines should use a text label that:
- Explicitly and clearly states that a search result is advertising,
- Is sufficiently large and visible for notice by consumers, and
- Is located near the search results that it qualifies.
The FTC also explains that the need to plainly differentiate search results from advertisements applies even in the context of new search platforms, like mobile apps, voice search and social media.
The FTC thanks the search engines for their anticipated cooperation. And cooperation is expected. Indeed, the correspondence closes by seeking “cooperation in ensuring your business practices conform to the supplemental guidance provided in this letter.” (Emphasis added.)
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.