highway_guardrailsRoadway guardrails are not intended to keep us from driving, but they are there to prevent us from going over the edge.   That is part of the reason why we have lawyers and compliance officers – to ensure that responsible marketers don’t inadvertently go too far.

The edge boundaries are blurring due to new media, new technology and new database automation, but increasingly, the courts and regulators are filling in the lines for us, particularly around social engagement.  At a compliance seminar hosted last week by DMA and presented by partners at the highly regarded law firm Venable, LLP, it sure seemed like even seemingly innocent social marketing strategies may put marketers at risk.

The good news is that the rules are the same – all centered around clear notice, choice and consent, says DMA General Counsel and SVP of Compliance Senny Boone.  The hard news is that compliance rules evolve because the marketplace evolves, and we have to adapt the rules to new media and advertising environments.

“Is this advertising or just normal speech?” said Venable partner Leonard Gordon in his presentation.  “That is a big concern about social media.  The FTC and other regulatory agencies are watching for disclosure and notice obligations on user generated content that is utilized by marketers for promotional purposes,” he said.

Regulators are watching social media closely, agreed Randal M. Shaheen and Randall K. Miller, both Partners at Venable.   Interest is coming not just from the FTC, but also from the FDA, state Attorney General offices and other agencies.

Randy Shaheen noted some of the areas where disclosure and notice are becoming increasingly important:

  • Using Twitter feeds or Facebook posts as testimonials.  The actual content of these may be considered product claims, and regulated.
  • Claims around the number of “likes” for your brand or product may be considered endorsement claims.   Consider disclosure on any incentives offered to encourage “likes” or other social activity.
  • Paying any bloggers, partners or other parties without full disclosure of the connection between the parties.
  • Employee social activity may be regulated as product claims.   Courts may not view employee activity as protected First Amendment speech.
  • Applications may be covered by COPPA rules and require parental notice or child protected access.
  • Promotional materials must meet the disclosure and clear, conspicuous notice rules in all forms of media and in all types of viewing environments.  For example, designated sponsored ads on the website must also be differentiated clearly in the app or mobile website.

Randy Miller, a litigator, offered guidance gleaned from recent court cases involving privacy.  In some cases, marketers successfully make the case that clicking on a “like” button or other social activity qualifies as an act of speech (and protected by First Amendment rights) and is not an “act of expression” which may be regulated.

“Advertisers are now legally responsible for the content of consumer generated content and videos,” he said, referencing the well documented Subway-Quiznos lawsuit.  “This case indicates that there is no immunity for any false claims made by consumers.  This includes not just liability, but also the responsibility of litigation.”

Randy’s recommendation?   Embrace this new environment.  “If you will be accused of shaping the conversation anyway, then you might as well take full editorial control of the content review and process,” he said.

“The social media litigation landscape is uncertain and rapidly changing,” Randy Miller said.  “The best thing you can do now is monitor  court decisions, capture best practices, and if you have an employee policy – enforce it and actively audit it.

Randy Shaheen offers these Rules to Live By:

  • If you can’t say something right don’t say it.
  • One form of social media does not govern all forms of social media.
  • Make clear that something is advertising and not content.
  • Tell people it is you.
  • Tell people when you have offered incentives.
  • Train and supervise third parties.
  • Only have policies if you are able to enforce them.

“The rules are the same, they just play out in new and different contexts,” he said.




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