Section VII

Section VII. Digital Political and Issue Advertising

Not Regulated by FCC, But Not Unregulated
Political advertisements displayed on a station’s website or any other online digital platforms — be it in text, video, or audio format — are not subject to the FCC’s political broadcasting rules. However, Internet spots sold as a package along with broadcast spots will be subject to the equal opportunities rule, and, in addition, the station must assign a value to the Internet spots for purposes of establishing the “lowest unit charge.”

The lack of FCC regulations over standalone digital online advertising, however, does not equate to a lack of legal risk. To the contrary — the content of a digital online political advertisement could expose a station to claims for, among other things, defamation, copyright or trademark infringement, or violations of federal or state election laws.

Fortunately, digital media law has developed some unique statutory protections for websites that display online content provided by third parties — including protections under Section 230 of the Communications Decency Act and the Digital Millennium Copyright Act (DMCA). Congress provided these statutory protections to foster a free and robust marketplace for Internet communications that allows websites to avoid costly pre-screening procedures for online advertising and other content submissions. The scope of Section 230 immunity came before the U.S. Supreme Cout in 2023, but the Court left Section 230 intact without significant discussion. Time will tell if Section 230 comes under further legal challenge.

But these statutory protections are not absolute. Indeed, they are fraught with minefields for website operators that exercise too much control over third-party content. The statutory protections are built on the premise that website operators do not, and should not be required to, monitor or control the content of third-party online submissions. Accordingly, if a station decides to take an active role in monitoring and controlling such third-party submissions, the station may well lose the benefit of at least some aspects of the statutory protections. Additionally, the statutory protections do not cover all claims — i.e., trademark infringement, false endorsement, and right of publicity claims remain unaffected. Thus, stations should be prepared to remove potentially infringing content from their websites after discussion with counsel.

In the absence of any bright line rules for Internet political advertising, station websites should apply the following general principles.

A. “Equal Opportunities” and Non-Discrimination

Although the FCC’s “equal opportunities” and “reasonable access” rules do not apply directly to standalone digital advertising on a station’s websites and other online digital platforms, competing candidates for political offices should be afforded the same opportunity to purchase digital advertising and, if they are purchasing the same class and amount of digital advertising, should be charged the same rates.

Although there is no “lowest unit charge” requirement for candidate advertisements on the Internet, stations’ websites should charge political candidates and regulated committees the “usual and normal” commercial rate for a similar type and amount of advertising.

Failure to adhere to either of these principles may lead a disappointed candidate to file a complaint with the FEC, FCC, Ohio Secretary of State, or relevant Ohio Board of Elections claiming that the website operator is making an unlawful in-kind corporate campaign contribution to the candidate’s opponent(s) to the extent of the difference in the ad rates charged.

B. Digital Sponsorship Identification

FEC Jurisdiction
Sponsorship identification for political and issue advertising on a station’s digital platforms is governed by the FEC rather than the FCC. The FEC generally enforces its sponsorship identification rules against the candidate or other advertiser — not the broadcaster.

FEC-Required Disclosures for Websites
FEC-mandated disclosures for paid political ads on websites have been required for some time for:

• Communications paid for or furnished by a “political committee.” The Supreme Court has limited the FEC’s definition of a political committee to encompass only those organizations controlled by a candidate or a committee (e.g., a candidate’s campaign committee) or whose “major purpose” is the nomination or election of a candidate (e.g., a political action committee or PAC). Political committees are registered with the FEC. A SuperPAC is a political committee registered with the FEC even though it is not subject to contribution or expenditure limits. (Note that a disclaimer is required for any communication paid or furnished by a “political committee” — the communication does not need to expressly advocate the election or defeat of a clearly identified federal candidate or solicit a contribution, unlike in the category set forth in the next bullet point.)

• Communications paid for by any corporation, union, association, organization, or individual that (i) expressly advocate the election or defeat of a clearly identified federal candidate, or (ii) solicit any political contributions.

FEC Disclosure Requirements Expanded for Additional Digital Platforms
The applicability of the requirements was recently expanded beyond just websites effective March 1, 2023. While the old regulation only applied to paid advertisements on third-party websites, the new regulation is more expansive and covers third-party websites, digital devices, applications, or advertising platforms.

Impact on Broadcaster Digital Media Platforms
As with other FEC requirements, the new digital disclaimer requirements for political ads on the Internet are unlikely to have much practical, direct impact on broadcasters. This is because the FEC’s rules generally apply only to federal political candidates and others engaged in federal electoral activities. However, becoming familiar with these rules can be useful against certain tactics that political candidates and committees have exercised in the past (i.e., C&D letters from lawyers seeking to convince stations to stop airing certain political ads favoring or opposing candidates for public office).

Platforms the FEC Digital Disclaimer Requirements Apply To
The new rules apply to any paid advertisements on third-party websites, digital devices, applications, or advertising platforms. This would include paid ads on broadcaster websites, mobile apps, social media pages, and streaming services.

General Disclaimer Requirements
The content of the required general disclaimer depends on who paid for the ad.

Type of Ad Required General Disclaimer
Paid for by a candidate, authorized committee, or an agent of either Disclaimer must state that the communication has been paid for by the authorized political committee.
Paid for by a third party (not one of the above) and has been authorized by the candidate, an authorized committee of the candidate, or an agent of either Disclaimer must identify the person or entity that paid for the ad and state that the ad has been paid for by such third party and is authorized by, as applicable, the candidate, authorized committee, or agent of either.
The ad is neither paid for nor authorized by the candidate, an authorized committee of the candidate, nor an agent of either Disclaimer must provide the full name and permanent street address, phone number, or website address of the person or entity that paid for the ad, as well as state that it was not authorized by any candidate or candidate’s committee.

These general disclaimers must be presented in a “clear and conspicuous manner.”

Additional Disclaimer Specifications
Digital political ads disclaimers must also follow these specifications below related to the “clear and conspicuous” requirement:

• Must not be “difficult to read or hear, or placement easily overlooked.”

• For ads with text or graphic components, the ad must include the general written disclaimer in a manner that can be viewed without taking any additional action.

• Must be of sufficient type size to be clearly readable by the recipient of the communication. The “safe harbor” example includes disclaimer that is at least as large as the majority of the other text in the ad.

• Must be displayed with a reasonable degree of color contrast between the background and the disclaimer’s “Safe harbor” examples include black text on white background, or use of color contrast that is no less than the color contrast between the background and the largest text used in the ad.

• For video ads, the disclaimer must be visible for at least 4 seconds and appear in the video without the viewer taking any action.

• For ads with an audio component but without video, graphic, or text components, the disclaimer must include the general disclaimer requirements above within the audio.

Exception for “Adapted Disclaimers”
Where a full disclaimer cannot be provided or would occupy more than 25 percent of the ad due to character or space constraints intrinsic to the advertising product or medium, an “adapted disclaimer” may be used. The adapted disclaimer must be “clear and conspicuous” and must incorporate the elements below:

• A clear statement that the internet ad is paid for and identify the person(s) who paid for the ad using the sponsor’s full name or a commonly understood abbreviation or acronym by which the sponsor is known; and

• A clear and conspicuous, visible or audible “indicator” (e.g., written words, image, sound, symbol) to the viewer or listener that they may read, observe, or listen to a full disclaimer (meeting the general requirements and specifications described above) through a “mechanism.” The “mechanism” must enable the viewer or listener to take no more than one action (i.e., one touch) – such as a hover-over text, pop-up screens, scrolling text, rotating panels, or hyperlink to a landing page – to access the full disclaimer.

Please note the FEC rules do not specify how to measure the 25 percent size (i.e., pixels, seconds, characters) and instead has directed that size be measured based on “the most appropriate measurement” for the ad.

Although the FEC’s rules are traditionally enforced against candidates and other political committees regulated by the FEC, it is sound practice for stations to require advertisers to follow the FEC’s rules and to notify the advertiser or agency if the station is aware that an advertisement lacks a proper FEC disclaimer.

C. Liability for Political Advertising Content

Another area where the law governing station website operations contrasts with the rules governing broadcasting is that of liability for the content of advertising.

Broadcast Liability
Stations are not liable for the content of broadcast advertisements by a legally qualified candidate. Stations are liable, however, for the content of broadcast advertisements by third parties, including political parties, SuperPACs, and other organizations funded by corporations or unions. The result is that a station’s immunity depends upon the sponsor of the political advertisements.

Digital Liability
For digital advertisements, the rule is different and more complex. While there is no absolute immunity for any political advertisement (not even for candidate advertisements), federal laws provide statutory immunity from defamation, privacy, and copyright claims arising out of political advertising so long as the station meets specific statutory criteria. However, there is no statutory protection from trademark infringement, false endorsement, or right of publicity claims in a political advertisement.

Some Limited Federal Statutory Protection from Liability
Please note that different federal statutes govern protections for defamation (Section 230 of the Communications Decency Act) and copyright (DMCA). The differences in these two statutory protections are discussed below. Stations should discuss the scope and application of these protections with their legal counsel.

1. Defamation Immunity — Section 230

Protection for Content Produced by Third Parties
Section 230 affords station websites broad immunity from liability arising out of online content that is “created and developed” by third parties (i.e., any party other than the station). There is no Section 230 immunity, however, for websites that are responsible for “creating” or “developing” any part of unlawful advertising content. This threshold presents important changes to the way stations engage with Internet advertising as opposed to television advertising. To avoid losing Section 230 immunity, stations should not produce Internet political advertisements for any candidate or political organization because doing so may cost the station its Section 230 immunity for that particular advertisement.

If a station makes edits to any part of a digital advertisement that becomes the subject of a lawsuit, or otherwise takes action to materially contribute to the content at issue, the station’s role in contributing to those edits may threaten the loss of Section 230 immunity. For example, if a station recommends particular edits to the advertiser as a condition of running the advertisement, the station may be considered to have “created” or “developed” that part of the ad. Similarly, if the station’s staff inserts its own title or description of the advertisement without the direction of the client, and that title or description is defamatory (e.g., “Embezzler” ad or “Tax Cheat” ad), the station is exposed to liability for creating or developing the defamatory content.

Ad Must be Intended for Online for Protection to Attach
In addition, it is important that all political advertisements be provided for online use in order to fall within Section 230. Section 230 may not apply to advertisements obtained from television broadcasts where the sponsor of the advertisement did not intend for the advertisement to be published online. A political advertisement intended exclusively for television should not be placed on a station’s website without the prior approval or consent of the advertiser. Even if a station’s goal is to add value to an advertiser by including the spot on the Internet as part of a larger package buy, the station should make sure that such intention is reflected in the sales contract.

“Good Samaritan” Protection
Section 230 also contains a “good samaritan” provision that shields websites from liability for any action taken in good faith to restrict access to objectionable content. Once an advertisement is uploaded onto a station’s website, the station has broad discretion to remove any or all of the advertising content that it deems to be objectionable. Although stations may also edit the advertisement to remove specific objectionable content without liability, they may not edit content in a way that creates or develops any part of the unlawful material. Stations also have the right not to delete political advertisements produced or created by a party other than the station — even highly controversial ones.

In sum, for digital advertising on digital platforms, stations should consult with legal counsel to establish web advertising procedures that are consistent with the operator’s tolerance for legal risk.

Scope of Protection
As discussed below, Section 230 does not apply to intellectual property claims (nor to certain other claims, such as false endorsement or right of publicity claims or criminal law violations).

2. Copyright Immunity — Digital Millennium Copyright Act (DMCA)

If a candidate or any other political advertiser uses copyrighted music or other content in a digital advertisement without the rights holder’s authorization, the website could incur copyright liability if the content is deemed to be infringing.

Political advertisements are hotbeds for possible copyright violations because they are creative, cutting-edge, and designed to grab attention — especially Internet advertisements that can be created and distributed on almost a moment’s notice. Candidates have landed in hot water with music publishers, record companies, and recording artists for alleged copyright infringement.

Requirements for Limited DMCA “Safe Harbor” Protection
Section 230 does not provide immunity from copyright claims. The DMCA, however, may offer a limited safe harbor from liability for copyright infringement under certain circumstances if a website or other online platform meets the following statutory conditions relevant to digital advertising:

• A station must appoint a designated agent to receive notifications of claimed infringement on its website in order to receive protection under the The agent’s contact information must appear on the website and be filed with the U.S. Copyright Office.

• The station must have a policy of terminating repeat online infringers.

• The website must not have actual knowledge that the material is infringing.

• The website cannot be aware of facts or circumstances from which infringing activity is apparent — also known as the “red flag” rule.

• The website/station does not interfere with standard technical mechanisms used to identify and protect copyrighted works.

• The website must not have the right and ability to control the material on its service. Note that courts have held that the right and ability to control material requires “something more” than the ability to locate and remove infringing Rather, it would require the website to have “substantial influence on the infringing activities” of users or advertisers who post the allegedly infringing material.

Take Down Upon Knowledge or Notice
The DMCA requires a website to remove or disable any infringing content as quickly as possible as soon as it has knowledge or notice of the infringing content. Copyright owners may notify a website of third-party infringement and demand that such content be removed by sending the station a written “take down” notice under the DMCA that includes, among other things, the identity of the material at issue, contact information of the claimed owner, and a good faith statement that the use of the material is unauthorized.

Note: The requirement that a website remove any infringing content in order to secure DMCA protection is a key difference between Section 230 protection and DMCA protection. Section 230 does not require a website to take down defamatory content after receiving notice, but the DMCA does require that a website take down content that infringes copyrights. For this reason, stations should consult with legal counsel to properly address takedown notices.

A station that receives a valid takedown notice must respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” If the notification does not substantially comply with all the required components, the station must promptly attempt to follow up with the complaining party to obtain information omitted from the notice and to remove the infringing material.

Notify the Advertiser of Takedown; “Counter Notice”
To avoid liability for removing content pursuant to a valid takedown notice, a station also must promptly notify the advertiser. If the advertiser provides an effective “counter notice” to a station, then the station must provide a copy of the counter notice to the copyright owner who issued the takedown notice and notify the copyright owner that the advertisement at issue will be reposted on the station’s website in 10 business days. The station must then repost the advertisement not less than 10 business days later and not more than 14 business days later — unless the station’s designated agent first receives notice that the copyright owner has filed an action in court seeking to block the alleged infringing work.

A valid “counter notice” from an advertiser must contain (1) a physical or electronic signature of the advertiser or other user, (2) identification of the material that has been removed or disabled and the location at which the material had previously appeared, (3) a statement under penalty of perjury that the advertiser or user has a good faith belief that the material was removed as a result of a mistake or misidentification of the material, and (4) contact information from the user and a statement that the user consents to jurisdiction of the federal court where the user is located and will accept service of process from the copyright holder.

If a station receives any “take down” notice from a copyright holder and/or a “counter notice” under the DMCA, it should consult with legal counsel immediately to determine the appropriate response.

3. No Immunity from Trademark Infringement, False Endorsement, or Right of Publicity Claims

Neither Section 230 nor the DMCA protects station websites against trademark infringement, false endorsement, or right of publicity claims arising out of content contained in online political advertisements. Trademark and false endorsement issues are not unheard of in political advertising — for example, Mastercard sued Ralph Nader’s 2000 presidential campaign for using its “Priceless” advertising slogan. A different legal controversy arose when Republican candidates ran ads narrated by an unauthorized sound-alike of actor Morgan Freeman. While station websites are not charged with an obligation to investigate whether an advertisement is infringing where the infringement is not clear on its face, the liability of a website for contributory or vicarious trademark infringement in such circumstances can be minimized by requiring representations from the advertiser that the advertisement does not contain any unauthorized use of trademarks or a person’s name, image, or likeness and, then, by taking down any known infringing advertisement.

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Obviously, stations carrying political or issue advertisements on their websites or other digital platforms will want to ensure against the risk of exposure for potentially unlawful or infringing content. This calls for conversations with the station’s insurance agents. In addition, stations should communicate with their legal counsel to set up appropriate protocols to minimize risk of exposure for the carriage of possibly unlawful digital political or issue advertisements.