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Online Political Advertising and the FTC’s Rules of the Road | Texas Lawyer

Online Political Advertising and the FTC’s Rules of the Road | Texas Lawyer


Dumpster Fire With Heavy Smoke Pollution From Garbage. Photo: by Baloncici/Shutterstock

This week, the president’s eldest son, Donald Trump Jr. released an online video in which he claims to highlight hidden truths about the illegal and reprehensible acts of the Biden family, particularly former Vice President Biden’s son, Hunter.

That video can be seen here on the official Twitter account of Trump.

In response, the political action committee, the Lincoln Project, directed primarily by former Republicans, excerpted and rearranged Trump’s video to deflect the claims back upon the Trump family.

That video can be seen here on the official Twitter account of the Lincoln Project.

At its core, isn’t this simply advertising and marketing on the internet? If so, to which rules and guidelines would it be bound?

Both videos were created by official and unofficial “surrogates”—the term that came into fashion in the 2016 election—who regularly employ various social media to advertise for or against the candidates. Certainly the spirit of this is advertising and marketing on the internet and a strong legal argument can be made that it is as well.

More often than not, it isn’t the official campaign of either candidate that takes to the internet with these media creations, but rather private political action committees, other interested parties, or, as we see above, even a relative of a candidate (which straddles other dangerous legal lines as well).

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Looking at these through an advertising and marketing lens, it’s clear that both of the videos above violate what the Federal Trade Commission refers to as the “Rules of the Road.”

The FTC makes it crystal clear that:

Advertising must tell the truth and not mislead consumers. 

In addition, claims must be substantiated. 

Measured even by these loose and general guidelines, the two ads above are what is known in the legal world as a “dumpster fire.”

The video made by Trump seems on its face to be highly misleading, but content like this is created, especially so close to an election, because proving the falsity of most of the claims in it before the election would be impossible. As is the case with so much online marketing content, this video is hyperbolic and often walks the line between outrageous and almost certainly illegal.

When you really think about the nature of the video made by Trump, it is a testimonial or endorsement, which the FTC addresses in their advertising standards:

Testimonials and endorsements can’t be used to make a claim that the advertiser itself cannot substantiate. 

Testimonials and endorsements speak both to the nature of a product or service and must reflect the experiences of consumers. What the video made by Trump clearly states is that consumers of a Biden candidacy (his supporters and the general public if he is voted into office) are not buying what they think they’re buying because the family is corrupt. Again, the video admittedly has multiple troubling legal issues, but here an endorser (the current president’s son) is making claims that (true or untrue) are not being substantiated.

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Things are equally complicated with the Lincoln Project ad, as an argument can be made that it is intended as parody. The problem with that argument is that the substance of the video is an intentional falsification of another video, then used to sway political opinion in the upcoming election. If we see the electorate as consumers—which they are in many ways, especially of political advertising content—then this ad is clearly deceptive.

This is clearly an unfair marketing practice that violates FTC guidelines. Again, while the Lincoln Project—the political action committee behind the video—would claim it as satire, how different is it from a cereal company video editing another cereal company’s ad to change their message to something like “Our cereal makes you sick?”

The Lincoln Project ad is internet advertising. The goal of all of their social media posts is to paint the current president in an unfavorable light, often by using and rearranging video clips and other images. The FTC guidelines speak about online advertising tools such as “text, interactive graphics, video and audio,” implying that using them for persuasion, as the Lincoln Project does here and elsewhere, is a form of advertising and just because it’s done online does not exempt it from general truth in advertising rules.

One more thing that makes the Lincoln Project ad interesting is viewing any satire defense in light of daily “fake news” claims in 2020. A satire defense (not that it would be a legal defense at any time) is more difficult these days where the lines have been blurred between outrageous and humorous. In other words, as bizarre as this sounds, it’s sometimes too hard today to know what is meant to be satire and what is meant to be real. Yes, this is a sentence as disturbing to write as it is to read, but it’s the reality of where we are today.

Clearly, what the Lincoln Project was doing in manipulating and reordering words and talking points in the video made by Trump was to convey the message that it was indeed the other family that is corrupt. But these political advertising videos become political very quickly. Will every person who views the Lincoln Project video watch the original video so that they know it is meant as not only a correction but a parody? Absolutely not. Within hours after its release, the Lincoln Project video was trending on Twitter and around the internet with many people watching it with perhaps the majority having never seen the original.

This is part of what the FTC was trying to address in their regulations. The rules of the road were designed to “help maintain the credibility of the internet as an advertising medium,” which is impossible to do when online political advertisement internationally straddles the line between deception and reality.


Aron Solomon Aron Solomon

Aron Solomon is the senior digital strategist for and an adjunct professor at the Desautels Faculty of Management at McGill University. He founded LegalX at MaRS Discovery District in Toronto, one of the world’s first legal technology accelerators, and was elected to Fastcase 50 in 2015, which recognizes the world’s leading legal innovators, Aron regularly consults for large global corporations, law, and accounting firms.


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