Brands and Bloggers: Keep Your Sponsored Content Legal

sponsored_content By Kerry Gorgone, {grow} Contributing Columnist

Disclosure: it’s not just the name of a bad Demi Moore movie.

Marketers, bloggers, brands and other content publishers are legally required to mention if they have a relationship that could bias the opinions they share. Each country has its own laws regarding false advertising, but the gist of things nearly everywhere is that you must disclose “material facts” not obvious to the person seeing a post or claim you’re making.

“Material” in this context means that a reasonable person would consider the fact important when assessing your credibility as a source of information on the topic. For example, if I receive free baby clothes from a brand, I’m more likely to give the brand a favorable review on my blog, or on a third-party site like Amazon.

Unless I say that I got the clothes for free, readers might think my opinion was purely based on my experience using them, and they might be more inclined to purchase that brand. On the other hand, if they knew I’d gotten the clothes for free, they could better weigh my positive comments against the possibility that I’m happier with them because I didn’t have to pay, or maybe just said I was happy with them in order to continue receiving free goods.

Whether they discard my opinion out of hand, or take it with a grain of salt, they have a right to know there’s a connection between me and the brand I’m reviewing. In the United States, the Federal Trade Commission regulates advertising to protect consumers from false and misleading claims.

Here’s the litmus test: if a moron in a hurry wouldn’t realize that your post was sponsored content, or that your research firm has a relationship with the brand you find to be the best in its product category, you need to expressly say so. “But how can I,” you might ask. “Twitter only gives me 140 characters!”

Disclosure doesn’t have to be hard (even in a tweet)

  • Are you posting something relating to a client? Add “[Client]” to your tweet.
  • Did a company sponsor your trip to their annual gala in Las Vegas so you could cover the product launch they announced there? Add “[Sponsored].”
  • Incorporate “#ad” if you’re short on space. Character limitations are no excuse for failing to disclose the connection.

Disclose every time you make a claim or share a post in which there is a relationship or connection not obvious to the reader. Don’t post a disclosure saying “the next 20 or so tweets are all sponsored,” and never mention it again. That won’t do it. “The disclosure should be in each and every ad that would require a disclosure if that ad were viewed in isolation.” (Source: FTC’s .Com Disclosures, March 2013)

Think of disclosure like disinfecting

It’s not difficult, it’s just annoying because you have to do it all the time. But if you’re scrupulous about it, and disclose (or disinfect) every time, you won’t have any trouble. “But why bother,” you might well ask. “Nobody else does it.”

As I’ve said in the context of giveaways, just because everyone else is breaking the law doesn’t mean you should, too. Justice is a funny thing: it might circle around a few times before landing. But it always lands, like the FTC landed on Deutsch LA for having employees post about Sony’s PlayStation Vita on their personal social media feeds …without mentioning that Sony was an agency client.

Brands, bloggers, and influencers, you’re on notice: the FTC expects disclosure. Here are some tips for keeping things legal across the different social networks and platforms you use for marketing.

When in doubt, disclose.

Don’t worry so very much about precisely when this person gave you something valuable. Even if it was six months ago, disclose. It’s better to be overly cautious now than sorry later.

Don’t focus on hashtags: focus on communicating.

As I’ve said before, using hashtags is neither required nor especially helpful when it comes to disclosure. People tend not to search for hashtags like #SPON. If you want them to understand that you’re linking to a blog post on a client’s website, just say “[Client].” Most people know what that means.

If you receive swag or samples, you might use “[Ad]”. People typically understand that, as well. And when space permits, use more than one word to explain the relationship. If you have no contractual agreements to discuss what you saw at the annual event in Las Vegas, for example, but you are writing a blog post about the company’s new product line, mention that the brand paid for your trip to Las Vegas.

Brands: clearly communicate your expectations

Smart brands tell bloggers and influencers that they expect them to disclose in accordance with the law. Don’t leave disclosure to chance. It’s not worth it. Legal implications aside, you’ll be under undercutting their value to your brand. Influencers that have lost the trust of their audience are no longer influential.

Tell bloggers you work with that you expect them to disclose early and often. Republic Publishing set expectations early on for influencers and bloggers working with them to promote the Nokia Lumia smartphone.

Please feel free to start posting with #LumiaSwitch as soon as you get your beautiful new device set up, we’ll be keeping an eye out for the chatter 🙂 **Disclosure reminder: When sharing information about Microsoft Lumia products/features/tools with the public, clearly disclose that it is a sponsored post and part of the #LumiaSwitch Project. ** A blanket tweet/post that your participation in the #LumiaSwitch activation is #SponsoredByLumia, for the duration of the activation period, would be great!

Personally, I wouldn’t rely on a “blanket tweet/post” in light of the FTC’s requirement that disclosure accompany “each and every ad,” but everyone has to weigh the risks for themselves.

DISCLOSURE: Republic Publishing provided me with a Nokia Lumia phone (with voice and data) to test during the promotional period. See what I did there? Disclosed.

Seriously: it’s that easy. And remember, it is always better to try to disclose. Even if you don’t get it exactly right, you likely won’t be fined as much as someone who elected not to bother at all.

kerry gorgoneKerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Instructional Design Manager, Enterprise Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Google+ and Twitter.

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