This is the first in a series of blogs with tips for minimizing legal risks when using social media to promote your business or organization.  This blog looks at some general guidelines for promotional activity in the social media context.

Promotion of your business through social media can have significant advantages. Social media platforms provide tremendous built-in audience potential.  Facebook has some 1 billion monthly active users, and Twitter boasts more than 270 million.  Social media also helps target advertisements much more precisely and provides opportunities for obtaining mass direct endorsements (e.g., with “Likes”), and indirect endorsements by using content obtained from individual social media activity.

Promotion through social media platforms is subject to the same laws as other mediums, but it presents new risk management and compliance challenges.  For instance, last year, a class action was filed against Facebook making right of publicity and unfair competition claims based on Facebook’s use of member names and images in a manner suggesting endorsement of advertised businesses.  Earlier this year, actress Katherine Heigl filed a lawsuit against Duane Reade claiming the pharmacy improperly used a photo of Heigl walking out of a NYC store in its tweet: “Love a quick #DuaneReade run?  Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.”  Heigl’s claims included violations of the Lanham Act, the New York Civil Rights Laws, and unfair competition.

Compliance with laws pertaining to intellectual property and advertising can be challenging in social media platforms where space may be limited, and the temptation is strong to use activity or content posted by others in promoting a business.  Indeed, spatial limitations are one characteristic of social media where compliance with existing advertising laws calls for special attention.  Disclosures are still required even though you might only have, say, 140 character spaces in a tweet.  In this situation, short hand references might be used for compliance (e.g., including “Ad” or “sponsored” within the tweet).

The FTC’s publication “.com disclosures: How to Make Effective Disclosures in Digital Advertising,” with numerous discussions of specific online promotion issues, is a wise read for those engaged in promotional activity online.  Among other topics, these guidelines provide recommendations for how to comply with advertising laws and rules in the face of issues like the space constraints that exist with many social media platforms.  Understanding the principles underlying the FTC’s rules will also help you navigate advertising issues when specific guidance is not available.

Here’s a quick list of some dos and don’ts for promotions on social media:

  • Do consider legal implications whenever starting a new type of promotional campaign
  • Do make sure that your social media promotions include any explanations – or disclosures – needed to avoid being misleading, even when faced with spatial limitations
  • Do use clear abbreviated disclosures, such as “Ad” or “Sponsored”
  • Don’t use abbreviations that may not be understood, like  “#spon” (at least according to the FTC)
  • Do use hyperlinks to make viewers aware of additional disclosures (labeling the hyperlink clearly so consumers know what the link contains, e.g., “OfferDetails”)
  • Don’t make hyperlink text ambiguous or vague about the subject (e.g., don’t use shortened urls that are just random letters and symbols)
  • Do place disclosures and hyperlinks as close as possible to the information they are directed to
  • Do make sure that highly material information appears along with the ad text that needs qualification (e.g., a tweet advertising “pearl earrings” must also include a qualifier like “imitation” if the pearls are not real)