On April 18, 2018, Governor Andrew Cuomo signed the New York Democracy Protection Act—which expands the disclosure obligations for online political advertising in the State of New York and requires television, satellite, cable, radio stations, and providers, as well as online platforms—to verify advertiser registration with the New York State Board of Elections and, in the case of online platforms, to create an online archive of political advertisements. The legislation became effective immediately upon signing, and is modeled on similar federal legislation, the Honest Ads Act, pending before Congress. Noncompliance could trigger penalties for those affected. In key part, the Act:
1. Expands the definition of political advertising to include paid online and digital ads targeted to as few as 50 persons.
- The Act amends the definition of “political communication” to cover “paid internet or digital” advertisements, and amends the definition of “independent expenditure” (a term referring to political ads run independently of candidates and political parties) to include “any paid internet or digital advertisement targeted to fifty or more members of a general public audience.” Other forms of communication (television, radio, print) must target 500 or more members of the general public to be deemed an independent expenditure, so in this way the Act singles out online advertisements for stricter regulation.
2. Requires more individuals and entities to register before engaging in political advertising.
- New York law already required individuals and entities to register as independent expenditure committees with the State Board of Elections prior to purchasing paid Internet advertisements targeted to 500 or more members of the general public. The Act clarifies that this requirement now applies to any form of “paid internet or digital” advertisements, and reduces the targeting threshold from 500 to 50. Importantly, under existing New York law, to be deemed an “independent expenditure,” a communication must (i) contain express advocacy (words such as “vote,” “elect,” “support, “defeat,” etc.) and be distributed during any period of time; (ii) refer to and advocate for or against a clearly identified candidate or ballot proposal in the year of the election; or (iii) simply refer to a candidate or ballot proposal during the 60 days before a general or special election or within 30 days before a primary election. This means that under the Act, an online advertisement, such as a promoted social media post, that merely references a New York candidate or ballot proposal and is targeted to as few as 50 people could require the sponsor to register and comply with complex disclosure requirements.
3. Requires television and radio broadcast stations, cable and satellite television providers, and online platforms to verify advertiser registration and create an archive of political ads.
- The Act requires stations, providers, and online platforms to require independent expenditure committees to provide them with a copy of their Board of Elections registration “upon the purchase of an independent expenditure.” Online platforms are further required to maintain and make available to the public a detailed record of independent expenditure purchases going back at least five years. This record must be made available online and include a copy of each advertisement as well as information regarding the targeted audience, costs, views, referenced candidates and ballot proposals, run dates, and the name, address, and phone number of the purchaser. Failure to comply with these requirements could result in a civil penalty of up to $1,000 per violation.
4. Effectively bars foreign nationals, governments, instrumentalities, and agents from engaging in political advertising.
- Foreign entities (any “foreign national, government, instrumentality, or agent”) may not form an independent expenditure committee for the purpose of making independent expenditures in any New York state or local election. As noted above, such registration is required before making independent expenditures, so this provision seeks to effectively prohibit foreign entities from engaging in political advertising. The Act is silent on what type of activity could cause an individual or organization to be deemed a foreign instrumentality or agent.
5. Requires “paid for by” disclaimers on most online political advertisements.
- Internet and digital ads must now contain a “paid for by” disclaimer printed in “an appropriate legible form” that states “Paid for by:” followed by the name of the political committee or independent expenditure committee making the expenditure.
- An internet or digital advertisement that advertises for or against a particular candidate, election, or ballot measure and which limits “the content of such communication to the name, office, and brief message” is not required contain a “paid for by” disclaimer if the advertisement is “unable” to contain the disclaimer “due to its small size” and it instead links to a webpage that prominently displays a “paid for by” disclaimer.
- Independent political ads must also include a statement that the ad was not authorized by any candidate.