At one point in the not so distant past, social media was like the Wild Wild West—unconstrained by the laws and rules forced on other media sources. Users reposted any image onto their own blogs without asking or crediting the owner; and bloggers accepted significant sums of money to write rave product reviews without mentioning the monetary exchange.
But no more. A few years ago, the Federal Trade Commission (FTC) expanded copyright laws and disclosure guidelines to cover social media channels and initiatives (something they had not done since 1980!). Following are the basic issues, and some quick tips for ensuring you adhere to the guidelines and cover yourself in the unfortunate event of a lawsuit.
photo credit: steakpinball via photo pin cc
THE FEDERAL TRADE COMMISSION
The most recent FTC update occurred in October 2009, but still remains relevant and enforced. Following are the main items that were updated:
- Any advertisement featuring a testimonial discussing an atypical experience with a product or service (e.g., “I lost 200 lbs. with the FlexBelt alone!”) must clearly disclose typical results.
- “Material connections” between the advertiser and endorser must be clearly disclosed. Materials can mean direct payments, free products or gifts of any kind. This update was made to address bloggers and social media specifically. Bloggers must state their connection to any product/service they endorse if connected materially.
- Endorsers, not just advertisers, can now be held liable for false or unsubstantiated claims or for not disclosing connection.
- Celebrities have a duty to disclose relationships with advertisers when using mediums outside of traditional advertising, such as social media or talk shows.
Full details on the FTC guidelines update: http://www.ftc.gov/os/2008/11/p034520endorsementguides.pdf
TESTIMONIAL GUIDELINES
Endorsements must reflect the honest opinions, findings, beliefs or experience of the endorser. An endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser. If an advertiser would like to repost a testimonial made on one site onto another, it does not have to be the exact text, but it cannot be presented out of context or reworded in a way that distorts the original message.
If the endorser is claiming to be an expert in a field, they must back this up by information on experience or training in that field, or by scientific evidence. This does not apply if the testimonial covers subjective attributes, such as taste; however, the endorser must support findings by showcasing an exercise of which they are an expert at evaluating (e.g., taste test by a panel of randomly selected consumers).
Full guidelines on testimonials: http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf
BLOGGER OUTREACH
The advertiser and/or agency conducting blogger outreach is responsible for ensuring that bloggers disclose their connection to the brand or any payment received, and that they know what can and cannot be stated. This correspondence should be documented in writing and contain assurance by the blogger that they will include said disclosure. If the blogger fails to disclose the connection for any reason, you have these documents on file showing that you followed procedure and made every effort.
How can you be sure if the blogger needs to disclose something? Ask yourself the following questions. If you answer yes to any, then it is considered “sponsored communication” and the blogger must disclose:
- Was blogger compensated?
- Did blogger receive free product/service?
- Was their opinion solicited?
- Did you reach out directly?
Celebrities are an exception, as is usually the case. Celebrities do not need to disclose because it’s assumed they are being paid for everything they do; however, they must disclose a material connection when appearing on or utilizing non-traditional outlets, such as a talk show or Twitter.
USER-GENERATED CONTENT
The advertiser may be held responsible for copyright violations created through user-generated content (UGC). The safest way to utilize UGC is to leave it as submitted. Never edit a single letter or pixel of content provided by a user.
The Digital Millennium Copyright Act (DMCA) Safe Harbors can protect advertisers from liability resulting from the activities of users, and place that liability on the infringing user. The safe harbors are essentially ways for advertisers and agencies to proactively cover their butts to avoid copyright infringement issues:
- Do not provide a financial benefit for infringing activity
- Include take down and termination notices about copyright infringements; notices can be part of sign up process or live on website where users can access them
- Alert user if their materials have been removed due to copyright, indicate specific material in question, and provide opportunity to rebut if they believe it was wrongly removed
- Provide releases for copyright (intellectual property) and publicity (personal property)
To qualify for the safe harbors, an advertiser must satisfy the following criteria for UGC:
- Advertiser is an entity offering the transmission, routing or providing of connections for digital online communications
- Advertiser did not initiate the transmission of the material
- Transmission, routing, provision of connections or storage is carried out automatically
- User, not advertiser, must select the origination and destination points of communication
- Advertisers must not modify the communication selected by the user
- Communication is transmitted “through” the system or network of the advertiser
- No copy of the communication is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients
- No copy is maintained on the system or network in a manner ordinarily accessible to anticipated recipients for a longer period than is reasonably necessary for the transmission, routing and provision of connections
PHOTOS & IMAGES
Creative Commons licensing allows you to reuse work such as photographs without violating copyright laws provided you credit the photographer or individual that created the work. Creative Commons is most frequently associated with Flickr, due to the fact that it’s a great source for finding free photos.
To locate Flickr photos that you can use, go to http://www.flickr.com/search/advanced/. Make sure you have the following check box marked, then enter a search query.
To download the photo, you must first click on it to bring up the image’s page. Once you do this, right click on it to choose which size you’d like to see and download (400-500 is usually big enough for blog posts).
For photos with buildings, landscapes, animals, etc., be sure to credit the photographer. Simply adding the caption, “Photo by John Wilson” with a link back to the Flickr photo works just fine.
Do not use photos with people in them, unless you are willing to seek out the individuals and obtain signed publicity releases for each person.
The types of releases required for commercial use are different for intellectual and personal property. Copyright releases focus on the intellectual or material property itself (e.g., photograph, article, etc.). Publicity releases focus on personal property, and allow advertisers to use the photograph of a particular person.
PinPhoto (http://photopin.com) is another site that allows you to find and use photographs and image at no cost. The gavel image above was found using PinPhoto. The site makes it easy to properly credit the photographer and the site with a simple line of code that you can copy and paste into the HTML section of your blog.
OTHER GUIDELINES
Some verticals have specific laws and guidelines that explicitly address what they can and cannot do and say on social media channels. For example, the Securities and Exchange Commission (SEC), which is responsible for enforcing regulations on financial companies, has stringent rules regarding solicitation, antifraud and anti-waiver provisions, Exchange Act and others. Essentially, those in the financial industry must be extremely careful that their social media content does not come off as advice for making investments, selling stocks or other financial actions. If you are in the financial industry or another industry that is highly regulated, be sure to familiarize yourself with those guidelines and rules specific to you and your brand.
FINAL THOUGHTS
Essentially, you should err on the side of caution whether you are the blogger, one reaching out to said blogger or brand being blogged about. Same goes for tweeting, Facebooking and all other online mediums. Use good judgment and be honest, and you should have nothing to fear by way of lawsuits.
Disclaimer: Location3 is not a law firm, nor are our employees lawyers. The information included in this blog is meant to guide you in the basics of copyright laws and FTC guidelines for online marketing efforts. Please review any social media practices with your own internal council.
