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Advertisements, Influencers, Social Media, and the Law

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By Casey C. Sullivan, Esq. on March 01, 2017 2:57 PM

Social media has become such an important platform for connection and communication that the Supreme Court is currently considering whether there's a Constitutional right to Facebook. (Seriously.) More than 2.5 billion people use social media, including the president, the Kardashians, and every tween alive, spending an average of just under two hours on social media every day. (Nine, if you're a teen.)

There's no question then why more and more companies are turning to social media as an advertising platform, whether it's Wendy's on Twitter or Home Depot on Snapchat. But social media advertising can raise some legal issues in-house counsel should be aware of.

Treating Social Media Advertising Like Any Other Advertising

In some respects, an ad on social media is no different than one in a magazine or on the television. All such ads must meet the basic rules underlying advertising law. First, the advertisers must have a reasonable basis for their claims. That's straight forward enough and such claims can be evaluated under similar criteria whether made on social media or not.

Secondly, advertisers must make clear and conspicuous disclosures as required to prevent an ad from being misleading. The FTC has guidance on how to make disclosures in traditional online advertising sufficiently clear and conspicuous. The general rule is that you want to disclosure to appear near the claim, where it is likely to be noticed, in a format that is easy to read and understand.

Social Media Influencers and Endorsements

When it comes to endorsements, however, things get a bit more complicated. Many social media advertisements take the form of product placement on the accounts of a social media "influencer," or someone with the ability to impact their followers' purchases. This could mean an Instagram celebrity posing with a product, or a popular Facebook page giving recommendations.

When do such endorsements need to be disclosed? According to Aaron Pierce, a corporate transactional attorney, "Influencers who are posting must clearly and conspicuously state their relationship with the brand."

"The golden rule for influencers," Pierce writes, "is: when in doubt, disclose."

While the disclosure requirement falls on the endorser, Pierce recommends that companies still establish procedures to ensure such disclosures are properly made by endorsers and employees.

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