When discussing the laws and regulations of social media, a common refrain is the law is trying to catch up with the technology. However, in 2013 the Federal Trade Commission (FTC) took one step closer to catching up to social media’s rapid development by providing guidelines for what constitutes legally sound disclosure practices on social media sites. The impact of these new guidelines are significant for PR practitioners since they detail the proactive steps an organization can take to prevent a consumer protection lawsuit.
Federal law requires certain types of disclosures for products and services in a wide array of industries ranging from leather goods to car manufacturing. Additionally, the FTC requires disclosures in certain types of promotional content such as warranties, giveaways, and photographs. However, until 2013 disclosure requirements in social media have been vague at best. Compounding this issue of social media disclosures is that social media promotions reside in a middle ground between advertising and public relations departments. Given that disclosures connote a relationship with publics and that social media is increasingly associated with PR, practitioners should take note of the FTC’s social media disclosure guidelines.
The recent social media disclosure guidelines provide suggestions for both the substance and technological delivery of disclosures. While these FTC guidelines are not laws, they are important because they are agency-created rules for complying with current federal disclosure laws. These guidelines are not industry-specific, but they do anticipate the varying complexities of disclosures in a variety of new media.
The FTC guidelines address multiple areas of social media disclosure. While the report provides many specific details about disclosure requirements, the general theme is that organizations must consider the social medium, the technology used to access the information, the visibility of the disclosure, and the accessibility of the disclosure when crafting disclosure statements. According to the FTC report, disclosures should be obvious, easily accessible, easily understood, and placed in a location that users would normally pay attention. Disclosures should also be repeated if necessary and provided before a user purchases any good or service. The report gives specific guidance as what not to do when writing a disclosure. Absolute don’ts include placing a disclosure at the end of a webpage, requiring users to click multiple times to get to the disclosure, or placing the disclosure in an inconspicuous place.
Examining these new guidelines four suggestions emerge for PR practitioners.
- Disclosures should be tailored to the structure of certain social media. Twitter disclosures are not the same as blog disclosures because of the structure of the sites.
- Limited space in social media outlets does not mean an organization is absolved from providing complete disclosure information. If proper disclosures cannot be made in a particular social media outlet, then that site should not be used for promotional materials.
- When drafting a disclosure practitioners should think like ordinary social media users. Using jargon, providing information overload, or placing the disclosure in an obscure location that requires scrolling is not evidence of proper disclosure.
- When writing a disclosure practitioners should not only consider the limitation of a social media platform but also limitations of technological devices. Users read information in a variety of ways including on tablets, smart phones, and traditional computers. Practitioners should consider the ordinary use of these and future technologies and anticipate how ordinary users consume information on these devices.
While following these steps are not a full proof strategy for avoiding FTC disclosure investigations and non-compliance suits, these four suggestions help practitioners comply with the spirit of new FTC guidelines. Practitioners should keep up with new regulatory laws and guidelines affecting social media content. When in doubt it should be assumed that existing laws and regulations apply to new media and old media alike.
FTC regulations have traditionally been associated with advertising. However, the federal government makes no distinction between PR and advertising. In this age of strategic communication, PR practitioners have to be aware of all social media regulations. Given that social media management is increasingly under the purview of public relations, knowing these regulatory boundaries are important for all PR firms, departments, and practitioners.
In this era of convergence between public relations, marketing, and advertising into so-called “strategic communication” it is important that PR practitioners stay aware of these laws affecting promotional uses of social media. In fact, these new guidelines seem to comport with the ethos public relations given that PR places a high value on transparency and organizational accountability. These new social media disclosure requirements may present new opportunities for PR practitioners who can work with marketing, advertising, and management sectors to create socially responsible, transparent, and, most importantly, legal promotional content on social media.
These guidelines are important not only because of their substance but what they represent. As social media matures so do the laws that govern them. Practitioners should not assume that because social media is in its infancy that laws are not addressing particular social media issues. While law regarding new media may be behind technological innovation it is quickly catching up. Having a command of legal boundaries within social media gives practitioners the knowledge and power to further solidify their role as the social media experts of any organization.
Cayce Myers, J.D., LL.M., serves as research editor for IPR in the area of public relations law. He is a doctoral candidate at the University of Georgia’s Grady College of Journalism and Mass Communication.