Now that Twitter has opted out of political advertising and Facebook has reaffirmed its policy to run political ads—regardless of objections over false and defamatory information—it’s a good time to review the overall topic of false advertising in the new media world.
The prevalence of deceptive political ads on social media has led to some calls to revisit Section 230 of the Communications Decency Act, which has been invoked to absolve social networks of responsibility for the veracity of ads and of third-party content in general. It states:
“no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
But Section 230 doesn’t mean false advertising is legal on social networks. I’ve recently heard a few marketers wonder why it is that politicians can get away with false advertising when brands cannot. If you advertise in the U.S., you’re probably aware that the FTC has used its charter to fine companies millions of dollars for false advertising. In 2016, the FTC fined Volkswagen a record $14.7B to settle allegations of false advertising and specifically referenced social media campaigns on Facebook and elsewhere.
The FTC is far from the only organization policing false advertising. There’s a longstanding network of nonprofit watchdogs, such as Truthinadvertising.org and the BBB’s National Advertising Division, that process complaints. Where warranted, these groups initiate legal action through the FTC or other federal agencies, state governments or class actions. As a result, false advertising is far rarer for commercial products than political messages, and victims have a clear and effective recourse when it occurs.
The self-regulatory structure of commercial truth-in-advertising concerns removes decision-making responsibility from the publishers and broadcasters puts it in the hands of the brands and people who are victimized by their mendacity. This has worked pretty well for decades. So why doesn’t political advertising work this way?
There are basically two reasons:
First, U.S. law distinguishes between “commercial speech” and “political speech.” While commercial speech is regulated by laws like the Lanham Act of 1946, political speech enjoys full protection under the First Amendment—regardless of whether or not the content is true. In fact, broadcast TV stations are not allowed to “censor” political ads at all. Cable networks and internet services, as we’ve seen, can decline ads at their discretion. But the veracity of political ads is basically unregulated.
Second, although there are watchdog groups like PolitiFact and FactCheck.org, as well as many newspapers that run political fact-checking organizations, there seems to be no way to escape the charge of partisanship within this process. In fact, a recent Pew Research poll revealed that roughly half of U.S. adults think fact-checking is biased.
So where does this leave marketers?
Here are a 5 takeaways:
The first thing to remember is that commercial advertisers are held to a much higher standard than politicos. As brand marketers, we’re accountable for accuracy, fairness and fulfillment in our ads. The FTC offers a helpful FAQ with more details.
We need to keep tabs on competitive advertising and, when competitors break the rules and lie, aggressively pursue the appropriate recourse, regardless of where deceptive advertising appears. Social media has made monitoring more difficult, but there are services and tools that can help.
When it comes to political issues, most advertisers have learned to tread cautiously in their ad creative, if it’s not central to their brand. It’s a safe bet that as political fevers rise, most consumers will crave a respite from partisanship.
Advertisers have more leeway regarding the media. If you don’t like the political advertising policy of a publisher or social network, you don’t have to buy their ads. Consider doing business that is conditional upon a seller’s using third-party fact checkers to vet the truth of all ads, not just commercial ones. Let’s suggest they consult a balanced panel of fact checkers to address bias and agree not to run ads that are deemed false by nonpartisan consensus.
Finally, we can remind them that, no matter how great their reach, as advertisers we need to be as confident that our messages won’t appear close to something toxic. After all, if your ads are surrounded by deceptive political ads, how likely are people to trust them?