Search engines urged to better distinguish between advertisements and search results

The US Federal Trade Commission (FTC) has sent several letters to search engine companies (such as Google, Yahoo, AOL, Ask.com, Bing, Blekko and DuckDuckGo) asking them to better distinguish between advertising and natural search results. The FTC notes that in recent years, it has become less easy for searchers to identify paid search results as advertising. This is especially the case with advertisements located immediately above the natural search results (‘top ads’).

Half of searchers do not recognize ‘top ads’

According to a recent survey quoted by the FTC, nearly half of the internet searchers fail to recognize ‘top ads’ as distinct from natural search results. These searchers in particular believed the background shading (used to distinguish the ads) in advertisement blocks was white. The FTC also refers to a practice with certain specialized search engines to include paid advertisements in search results without properly identifying these as ads. This is apparently the case with several search engines specialized in news, local business, shopping, travel and images. The increased use of smaller devices such as smart phones and tablets presumably also played a role.

In sum, these habits could constitute deceptive practices under the US FTC-Act, and the FTC now urges search engine companies to make the necessary adjustments to clearly and prominently disclose any advertising.  

Visual cues and text labels

The FTC’s updated guidance emphasizes the need for visual cues and text labels to distinguish advertisements.

Examples of visual cues are the use of a different background color or shading. Such visual cues have in recent times become less visible, with many consumers failing to detect them. Especially for the ‘top ads’ (which are often not clearly segregated from the natural search results), the FTC recommends:

·      a more prominent shading with a clear outline;

·      a prominent border to set off advertising from natural search results; or

·      both prominent shading and prominent border.

Apart from visual cues, search engines should also use text labels (e.g. ‘sponsored’ or ‘ad’) to distinguish advertisements from natural search results. Recently, such text labels have become less visible due to reduced font size and location in the right-hand top corner of the ad block (instead of the left-hand top). The FTC recommends text labels that:

·      use language that explicitly and unambiguously conveys if a search result is advertising;

·      are large and visible enough for consumers to notice (in adequately sized and colored font); and

·      are located near the advertising results (in front of the advertisement or in the upper-left hand corner of the ad block).

Search engines may use any method to disclose advertisements as separate from natural search results, as long as it is sufficiently noticeable and understandable to consumers.

It remains to be seen in how far search engines will comply with these new guidelines of the FTC. Failure to implement measures could be a deceptive practice in violation of Section 5 of the US FTC Act. In the meantime, consumers in Europe (incl. Belgium) are still waiting for an initiative of local or European authorities to guarantee a clear distinction between paid results and natural search results. You can then wonder if and in how far search engines and/or advertisers may be liable for consumer deception under EU law (or national law, e.g. Belgian law) for certain practices.

For more information about the FTC guidance on distinguishing between ads and search results, see the website of the FTC.

Do not hesitate to contact me for more information regarding the above.

Author: Bart Van Besien

Finnian & Columba

Belgium

bart@finnian.be