Social media is now an effective medium for advertising campaigns, as consumers forsake television for their computers, tablets and smart phones. Many marketers choose to launch a ‘word of mouth’ marketing campaign on social media site and encourage users to discuss a particular product or service.
However, such messages are not always a spontaneous publication of one’s opinion. Influential users or celebrities with many ‘followers’ on Twitter are sometimes approached by marketing agencies to promote a particular product or service to their audience. It they act on behalf of the advertiser or one of its agents, the tweets they post about the particular product/service ‘endorses‘ the service or product of the advertiser.
An Ad Must not be Unfair or Deceptive
For the Federal Trade Commission (FTC), such tweets are advertisements. Under the Federal Trade Commission Act, the FTC has the power to prevent unfair or deceptive acts and practices affecting commerce. An advertisement must not be unfair or deceptive, and advertisers must have evidence to back up their claims. An ad is deceptive if it misleads consumers or if it affects their behavior or their decisions about the product or service advertised.
The platform used to advertise does not matter, whether it is a billboard on Times Square or a 140-character tweet, and the same rules must be followed.
The FTC Updated its Dot Com Disclosures
When the FTC “Dot Com Disclosures Guidance” (the Dot Com Guidance) was first published in 2000, social media sites were not around, and people still used their phones well, to make phone calls. Now, 67% of US Internet users are using social networking sites, according to a recent survey by the Pew Research Center, and, according to a Comscore report, smartphones reached a 50-percent market penetration in 2012.
It is therefore welcome that the FTC updated in March the Dot Com Guidance which now explains how to ‘make effective disclosures in digital advertising,’ and applies to offline and online commercial mediums. There is much to say about the updated Dot Com Guidance but, on this post, I will concentrate on endorsements via Twitter.
General Rules About Endorsement
An endorsement is a particular type of advertising. The FTC updated in 2009 its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the Endorsement Guides) but did not change the definition of an endorsement.
Under the Endorsement Guides, 16 C.F.R. Part 255.0b, an endorsement is:
“… any advertising message … that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the endorser and may be an individual, group, or institution.”
So what is important is the subjective view of what a consumer may see as reflecting somebody’s opinion on whether a particular statement reflects the personal view of the endorser or is an ad.
The Guides also addressed the application of Section 5 of the FTC Act to endorsements and testimonials in advertising. Such endorsements and testimonials must not be deceptive, and they also must “reflect the honest opinions, findings, beliefs, or experience of the endorser.”
In order for such endorsements not to be deceptive, it is sometimes necessary to publish a disclosure. Disclosures must be clear and conspicuous, and that comes with some challenges when using Twitter.
How to Disclose an Endorsement on Twitter
If an endorsement is not disclosed, then the ad is deceptive and unfair. Therefore, it is very important that a Twitter user being paid by an advertiser to post a certain message discloses such relationship.
A disclosure must be disclosed in every tweet, as a Twitter user reading his timeline would not necessarily view the sponsored tweets one after another, as other tweets may be come between other tweets (see Dot Com Guidance p. A-19).
During a Twitter chat, an attorney from the FTC answering questions from the public about the Dot Com Guidance said that putting #ad, ‘ad’ or ‘sponsor’ on a tweet would adequately disclose that a particular tweet is sponsored. #Spon is however not an appropriate way to disclose an endorsement, as consumers might not understand this hashtag as meaning that the message is sponsored by an advertiser.
Also, posting the disclosure on a website and linking to this site from the post is not sufficient, because some consumers may not click on the link.
How to Disclose a Disclaimer on Twitter
Disclosure of additional information may be necessary to prevent a tweet from being deceptive or unfair. If a tweet warrants a disclaimer, then that disclaimer must be included in the tweet. Merely adding a link to the disclaimer is not enough. The tweet must state the disclaimer, so that consumers understand that the link is a disclaimer. The Dot Com Guidance gave as an example a fictitious tweet which adequately disclosed both the fact that the tweet by an user was an ad (Ad) and that the weight loss experienced by the user was not typical (Typical loss: 1lb/wk), see Dot Com Guidance p. A18.
One must remember that the Dot Com Guidance is a compliance document, not a law, and was only published to inform. It should not even be viewed as a safe harbor from liabilities, but mere guidance.
Image is no endorsements courtesy of Flickr user sookie pursuant to a CC BY 2.0 license.
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