Expert Advice on Instagram posts: Advertising or testimonial?
Instagram has beaten Twitter as the most popular platform for marketers and their social media campaigns for the first time, according to a new survey. With that comes issues about disclosure and proper identification of the content as editorial or advertising. This issue is gaining more attention as marketers choose to circumvent traditional television advertising due to waning audience numbers and instead, seek to connect with a very specific demographic where they hang out on social media. Similar issues have arisen on other popular social platforms such as SnapChat and YouTube. Wanting to come across as authentic but being legally-correct is indeed a slippery slope.
Following are key things to be aware of as well as insight from intellectual property attorney, Aaron Pierce, Pierce & Kwok.
- Pay attention to Federal Trade Commission Endorsement (FTC) guidelines regarding “native advertising”- these will continue to evolve – which state that such messages must be labeled as paid advertising. The nonprofit, Truth in Advertising, carefully monitors the space as well, calling out brands for breaking the rules.
- The current buzzword is transparency. The Federal Trade Commission Act prohibits deceptive or unfair trade practices. Can an average consumer differentiate between paid advertising and anything else, including product reviews, news, feature articles, general entertainment etc.? “The safe tack here,” says Pierce, “is generally boiled down to a singular rule: Taken in context with its surroundings and presentation, if an average consumer may be misled to believe a paid advertisement is anything but, then a clear and prominent disclosure is necessary to prevent the possible deception.” The FTC guidelines are clear, and regularly promulgated: “When a native ad appears on the main page of a publisher site or is republished in other media, it commonly consists of a headline, often combined with a thumbnail image and a short description, which, if clicked or tapped, leads to additional advertising content. Under FTC law, advertisers cannot use ‘deceptive door openers’ to induce consumers to view advertising content. Thus, advertisers are responsible for ensuring that native ads are identifiable as advertising before consumers arrive at the main advertising page. In addition, no matter how consumers arrive at advertising content, it must not mislead them about its commercial nature.” In the end, due to the sheer volume of content continually released, efficiently policing unpaid advertisements within the social media universe is, to date, impossible. But for the person or company posting, be wary of your own online reputation. If you flout FTC regulations, not only are you breaking the law, but you risk losing that quality that makes social media commentary, objective product review, and the legitimate “influencer” something unique and special, your authenticity.
- Before selecting a paid spokesperson, make sure they are aware of your own company’s endorsement guidelines. It’s smart to provide this in writing using legal counsel.
- The FTC recommends putting the hashtags #ad or #sponsored at the beginning of paid social media posts and including verbal disclosures on sponsored videos. Something like, “thank you to our partner brand XYZ” in sponsored videos makes it more evident (you can also add a written disclosure statement on the screen) that the post is brand-sponsored.
Has your brand recently used a paid spokesperson on social media?