Auditing IDX websites and VOWs is a tricky endeavor, involving both specialized technical and legal knowledge and capabilities. Not every MLS has staff with the time to stay on top of everything they need to, which is why some MLSs hire me to review or even completely manage their compliance efforts. My sister company, Clareity Security, is soon releasing a tool called SAFE Syndication which, among other things, will help MLSs manage their IDX and VOW compliance efforts – but no matter how good any tool is, it still needs to be wielded by knowledgeable and capable people. So, this post provides some much-needed information on one aspect of auditing: auditing disclaimer text.
MLSs generally require that specific disclaimer text such as, “Information is deemed reliable but is not guaranteed,” and sometimes MLS copyright text be displayed near the listing. I’ve had attorneys shake their head at the “deemed reliable” phrase, but I’m not going to focus on what’s in the disclaimer in this post, rather focus on how to audit that it has been appropriately displayed. Simple?
Consider the following language from the Federal Trade Commission: “Disclaimers and disclosures must be clear and conspicuous.”* What does that mean? According to the FTC’s “Dot Com Disclosures” article, “In reviewing their online ads, advertisers should adopt the perspective of a reasonable consumer. They also should assume that consumers don’t read an entire Web site, just as they don’t read every word on a printed page. In addition, it is important for advertisers to draw attention to the disclosure. Making the disclosure available somewhere in the ad so that consumers who are looking for the information might find it doesn’t meet the clear and conspicuous standard.”
So, where on the page must the disclaimer be? And can it just be hyperlinked from pages with the listing information?
Let’s read some further FTC guidance: “For print ads, an advertiser might measure proximity in terms of whether the disclosure is placed adjacent to the claim, or whether it is separated from the claim by text or graphics. The same approach can be used for Internet ads.” To me, this seems to indicate that the disclaimer needs to be proximate to the listing data – not separated by other content and graphics. The FTC has guidance for disclaimers made where one has to scroll down the page to view it: “Use text or visual cues to encourage consumers to scroll down a Web page when it is necessary to view a disclosure.” I’ve never seen anything like this on a page where there has been sigificant space between listing data and disclosure. This is an interesting part of the judgement to be made during compliance evaluation!
Some further FTC guidance: “On a Web page, the disclosure is more likely to be effective if consumers view the claim and disclosure together on the same screen. Even if a disclosure is not tied to a particular word or phrase, it is more likely that consumers will notice it if it is placed next to the information, product, or service to which it relates.” This language isn’t strong – it doesn’t say the disclaimer MUST be on the same screen, but it seems to be a strong recommendation.
But, later in the document, the FTC states, “With hyperlinks, additional information, including disclosures, might be placed on a Web page entirely separate from the relevant claim. Disclosures that are an integral part of a claim or inseparable from it, however, should be placed on the same page and immediately next to the claim … Under some conditions, however, a disclosure accessible by a hyperlink may be sufficiently proximate to the relevant claim.Hyperlinked disclosures may be particularly useful if the disclosure is lengthy or if it needs to be repeated.” Let’s look carefully at this – is “Information is deemed reliable but is not guaranteed,” too lengthy to include on a web page or even a mobile listing? It doesn’t seem that hyperlinking meets those conditions, in my opinion. Maybe there are other things to take into account. The FTC guidance doesn’t seem to address what happens when a web page is printed and the information becomes separated from its disclaimer. This troubles me – but maybe the FTC assumes that when printed, one would be reviewing their guidelines for print ads. Obviously, printing is usually less an issue from mobile devices. But perhaps the condition on disclosure length is enough to support my opinion.
Even IF (that’s IF) conditions for hyperlinks were met, the FTC says, “Don’t ignore your data. If hyperlinks are not followed, another method of conveying the required information would be necessary … Assess the effectiveness of the hyperlink by monitoring click-through rates and make changes accordingly.” Does anyone have data on what percentage of site visitors visit hyperlinked disclaimers? What percentage would be deemed sufficient? Is it okay if only 25% view the disclaimer? 50%? 75%? 90%? When would a change be needed? And, from a more practical perspective, how can an MLS compliance person judge effectiveness of hyperlinks?
Like I said, auditing IDX websites and VOWs is a tricky endeavor, involving both specialized technical and legal knowledge and capabilities – this post just covers one small part of the process.If you are an MLS staff person, after reading this background on auditing disclaimers, did this post change your mind on what you will be looking for? What do you think of some of my opinions, based on the FTC guidance?
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