Guest Blog: Seven Ways to Maintain Social Media Marketing Legal Compliance

Today we welcome guest blogger, David M. Adler, Esq., attorney, author, educator, entrepreneur and nationally- recognized speaker in the fields of intellectual property, media & entertainment and technology law.  His blogs are available at:  indiefilmlaw.wordpress.com and adlerlaw.wordpress.com.  Have you or your company had any experiences with compliance?  What updates do you know are now in place?  Share below.

In October 2009, the FTC updated it’s Guides Concerning the Use of Endorsements and Testimonials in Advertising to address increasing use of endorsements in online marketing. The update is particularly relevant to the explosive growth of social media as a marketing tool.

The updated Guides contain two areas of concern for marketers. First, the Guides removed the safe harbor for advertisements featuring a consumer’s experience with a product or service, the so-called “results not typical” disclosure. Second, the Guides underscored the longstanding principle of disclosing “material connections”.

It is still confusing for advertisers, marketers, bloggers and social media users to know how to comply. The purpose of this article is to provided simple, concrete standards to determine (1) when to make certain disclosures and (2) the type of disclosures required. I have grouped the disclosures into seven categories. The key requirement to keep in mind is the obligation to disclose any relationship that may have influenced you.

1. Personal Opinion

If you write a review or blog post and it contains only your own opinions, you haven’t received any compensation for the review or post, and you otherwise have no material connection to the topic of your post, you have nothing to disclose.

2. Free Sample/Free Gift

If you have been given a free copy, sample, or gift and you write a review or blog post, you must disclose the facts and circumstances of how you received the item or service, even if you have not been paid. You do not violate the rules if you receive payment unrelated your content. This is useful to remember when your content relates to product previews, reviews of samples, services, gifts, books, software, music, movies, etc.

3. Promotional Relationships

If you write a review or blog post and it is based upon an advertising relationship, and you have received compensation (cash, free services, product samples for personal use or a gift) for the review or post, you must disclose (i) the nature of the relationship, (ii) whether you received anything of value, and (iii) information about relationships with advertisers or endorsers that would have a material impact about how a prospective consumer would view the message. This disclosure is useful to keep in mind when your content relates to paid posts, sponsored messages, tweets, fan page postings, etc.

4. Employment Relationships

If you write a review or blog post and your post is based upon an employment relationship, you have a “material business relationship” to disclose, even if you are not being directly compensated for the message. It may even be part of your job description. Again, be mindful of the requirement to disclose any “connections” that may have influenced you, including both direct and indirect relationships.

5. Affiliate Relationships

If you write a review or blog post and your post is based upon an affiliate relationship, e.g., you have included affiliate links on your page, you must disclose the fact that the relationship exists and that you will be paid for referrals from your page.

6. Healthcare Disclosures

If you write a review or blog post and your content is based upon a connection to a pharmaceutical or healthcare product or program, you need to include relevant healthcare-related disclosures or information safety warnings, side effects, or official links with information.

7. Financial Guidelines & Disclosures

If you write a review or blog post and you work for a financial services company, you may be making investor-relations communications and your communications are subject to regulation by the NASD, SEC, FINRA and potentially state and federal regulatory agencies. The FINRA Guidance on Blogs & Social Networking Sites” can be found here. Record Retention: ensure that you can retain records of those communications. Suitability: a particular communication a “recommendation” for purposes of NASD Rule 2310 and is it suitable for potential recipients. Public Appearances: determine whether  your post part of an “interactive online forum” and whether supervision is required. Third-Party Posts: If your firm created or “sponsors” and online forum, be aware that, under certain circumstances, a customer’s or other third party’s content on a social media site may become attributable to the firm. Whether third-party content is attributable to a firm depends on whether the firm has (1) involved itself in the preparation of the content or (2) explicitly or implicitly endorsed or approved the content.

Clearly, legal and regulatory compliance for social media remains a minefield. Although this article is intended to give you a working knowledge of the types of risks created by, and disclosures required for, the use of Social Media, it is NOT LEGAL ADVICE. Each situation is unique and you should consult with qualified legal counsel regarding your specific circumstances.

 

 

12 Great Social Media & Law Blogs

These are great resources to keep up to date on the latest legal issues surrounding the use of social media.  Check them regularly for new information and in-depth review.  Do you have any you would add? And yes, that is us at the bottom – we just couldn’t resist. 🙂

Tweet and Greet

Hello! We are finally on our way!

Law2sm, LLC, (that’s us!) a new social media legal consulting firm, launches its new services and website on Monday, August, 1, 2011. We are marking this very special occasion with a Tweet and Greet online lasting the entire week where business professionals (that’s YOU!) can win one of 20 tickets to an upcoming Law2sm sponsored event.

From 8:00 am on Monday, August 1st, until midnight on Friday, August 5th, business professionals (YOU) are invited to follow and tweet a greeting to Law2sm at @law2smdeborah, mention the new company online with the hashtag #law2smlaunches, or send an email to info@law2sm.com. Winners will be announced on August 8th.

Events include “lunch and learns” and “tapas and tweets” on social media and law topics such as Badvocacy; Employee Policies and Terminations; Digital Asset Management; and more. To see a full calendar of events go to www.law2sm.com and click on “EVENTS.”

Hope to meet you online soon!

Five Social Media Legal Myths

Social media platforms, smart phones and applications are changing the way we conduct business and interact socially with friends, family, and colleagues. Today, discussions involving Facebook®, Android®, and Angry Birds® are common. But it is not all fun and games. The financial payouts and consequences of social media for those involved, including vendors, developers, and clients, are becoming more apparent. New cases emphasizing social media mistakes costing reputations, resources, and jobs are becoming just as common as new releases of applications and putting everyone on alert.

There are many top five and top ten lists out there on social media. We’ve looked at a few and noticed one thing seemed to be missing from the conversation – the law. So here is our list. Read, enjoy, share and please let us know your thoughts – did we miss one; do we need to clarify something; do you have additional questions or comments? Post your comment below or send us a tweet @law2smdeborah or by email at info@law2sm.com.

1. Social Media is Free and Should be let Free…

Social media is not as expensive as traditional media, but it does have a cost – the cost of time and resources (including staff) to apply it correctly and to protect the most valuable thing your company owns – its reputation! As for letting it be free, employees and customers can be wonderful ambassadors for your brand – but do you know what they are saying? Do they rave or do they rant? Are you part of the conversation? Are you responding in a way consistent with the law? Make sure you have the right legal guidelines, policies, and protocols in place to help you maximize your social media benefits and minimize your risks such as a potential PR crisis.

2. Anyone Can Do It…

Would you let a techie balance your company books? Would you let your accountant do your marketing? Would you let your lawyer design your logo? Unless those professionals have these other skills, the answer is probably a resounding NO! Everyone has specialized skills, job description and a role to play to get your company the success it is aiming for in cyber space. So make sure to get the right professional to help you with your social media strategies and make sure to get the right lawyer with the right expertise – who understands social media and knows the law – to make sure you are protected against liability in this digital environment.

 

3. Do it Now and Do it Fast…

It takes less than 5 minutes to set up a Twitter Account, a little longer for a Facebook Fan Page. The technical logistics are 1-2-3. But before you do (even if you’ve done so already) think about what you are trying to achieve with social media? Is it more customers, more exposure, more sales? Do all your social media accounts have the same name? Does it relate to your company name? Are you protecting your trademark as you create these different accounts? Thinking about these questions is one thing, but you need to take some time to answer and reflect on your responses. Then you need to put the answers in a central location that you and your company can refer to keep you on track [or legal]. You need a social media plan that is feasible, effective, and in compliance with professional, ethical, and legal rules. Make sure you seek guidance from the right professional(s).

4. Don’t Tout Your Success…Everyone Will See It…

You’ve heard about them, and probably seen a few – viral videos – the funny brothers pulling an ear, the playful kitten that stops wiggling in mid-air, the airline that broke a guitar and wouldn’t compensate its owner. The list goes on and on. But these are just a select few of the millions of videos that are uploaded to YouTube everyday! You use social media to market your brand and you can use other media to market your social media presence and you use social media to loop back to your website, etc., etc., etc. So, you have to shout about your success – and that’s fine. Just make sure you get everyone’s permission – especially your customers’ if you are using their name or photo – and don’t violate anyone’s privacy or intellectual property rights.

5. There are No Rules and Current Laws Don’t Apply

There are rules in the social media world – unwritten cultural norms in this digital environment. There is a language that the insiders know and there is a protocol to the conversation. Social media is about currency (what is important at this moment), authenticity (credibility and trust), and relevancy (to who is reading or interacting). Violating any of these rules can lead to a slippery slope of legal violations. Current laws do apply – because they are the laws that we have. But these laws are being challenged, changed, modified, and recreated, with new laws proposed every day – including two new laws on privacy introduced in 2011. Which ones apply to your company, your business, your industry? Knowing is important so you can take the steps necessary to protect your company and your success including getting the right people involved at the right time.