The Dos and Don’ts of Disclosure

By Amanda Watson

Picture an “all-hands-on-deck” Wednesday afternoon at Red Sky as the office prepares for a substantial launch event. Imagine a group of us huddled around a computer screen, conjuring the most direct, explanatory language for a disclaimer statement intended for the prominent tweeps in our community. This was the scene earlier this month, as we found ourselves two days away from Dave & Buster’s VIP grand opening, its first location in the Pacific Northwest, and we were inviting a select few social media personalities to the sneak peek.

This endeavor, along with other steps we regularly take with bloggers representing every topic and trade imaginable, is carefully designed to avoid the wrath of the Federal Trade Commission. One need only look as far as Ann Taylor and the scare from Boise’s own Nordstrom Rack opening to see why caution is justified (read more about Red Sky’s experience and reflections here). This informal huddle produced a paragraph dedicated to remove any pressures or expectations on invitees and if or how they communicate about the event, (producing more honest, transparent and authentic tweets or posts) while also protecting both our client and agency. The end result:

Thanks for your interest in the Boise Dave & Buster’s Media Day – I wanted to invite you to the first look at the location before the grand opening party and before the public opening for a chance to sample the menu, the drinks and try your hand at a few of Dave & Buster’s games. Obviously, we know you are not a member of the Treasure Valley media – but we do respect your voice on social media. You are invited to tweet, snap photos, etc., during the tour and share them as you wish. If you choose to do so, please utilize the hashtag #promo for full disclosure so your audiences are aware we’re providing a sneak peek with food, beverages and entertainment and there is no content expectation associated with your invitation. If you do decide to tweet during the tour, you can also hashtag with #DBBoise. Thanks again for your interest.

Christina & Amanda prepping for the Dave & Buster’s media sneak preview

Lisa McGrath, an attorney who specializes in social media and Internet law, was among those who received both the invitation and disclaimer. With a twitter following of more than 2,500 and extensive knowledge about events like ours, she was an obvious pick for the Dave & Buster’s sneak. Although Lisa could not make it to the sneak, she did speak at the Media Day of my most recent Leadership Boise session on this particular topic and the evolving landscape surrounding social media law and ethics.

Concentrating on “Brand Damage,” McGrath spoke about the lasting repercussions a brand may face when they don’t adhere to guidelines published by the Federal Trade Commission in 2009. These guidelines make note of “material connections” between advertisers and endorsers (connections that consumers would not expect) and how said connections must be disclosed. The guidelines also state that any blogger or tweep who receives cash or in-kind payments to review a product is considered an endorsement. This endorsement must be disclosed.

Why is this a good thing? In our profession, we work with a number of prominent twitter users and bloggers. It not only reinforces and protects their reputation with readers and followers when they are fully transparent, but it also serves the brand they are endorsing when they disclose that the opinions written are their own. Before the guidelines were published, you were within the law to hire someone to blog about a product with the expectation the post would be positive regardless of whether these words reflected their true feelings. Now, bloggers and tweeps disclose that written thoughts and opinions are their own and it bolsters the credibility of the writer and of the brand.

What is potentially frustrating about this? Well, if you’re putting on an event like the Dave & Buster’s sneak, we asked attendees to apply two different hashtags. Add any photos or links to the body of the tweet and suddenly the text you have left is pretty limited and so is the message. Granted, the extra hashtag keystrokes ultimately protects the endorser, the client and the agency.

McGrath also spoke about how brands are in a rush to “stay ahead of the curve” so they are deploying social media at every turn with no consideration to the implications of their tweets and posts. Even while many social media platforms are just a few years into existence, it is important to remember that every one has its own set of rules and guidelines when it comes to brands. For example, in my second year as a manager on Avery Office Product’s Facebook community, we have operated a handful of contests and give-aways, which all must function under an application and follow a strict set of rules set forth by Facebook. When in doubt, the best thing a brand can do is seek legal counsel and work with experts to ensure they are protecting themselves in a quickly evolving landscape.

This is ongoing fodder for discussion at the Red Sky roundtable… what are the best practices for blogger relations? How do FTC implications impact our messaging? Are there changes to any of these rules on the horizon? One undeniable rule in our world is asking every blogger to include a disclosure statement in their post whenever they receive product for review on behalf of our client. Once the product is in the blogger’s hands, however, it is outside of the company’s control whether they choose to abide by this rule. Shortly after the FTC published the new guidelines, the blogosphere was hit hard with fines (up to $11,000 per post) so it is ultimately wise for everyone to err on the side of disclosure.

So even though we operate under this philosophy daily, Red Sky will continue to refine our best practices for tweeting, posting, blogging, pinning and posting video. In the meantime, we share the following rules of thumb for those stepping bravely into the world of online relations:

• Put the brand first: your organization’s reputation and the trust of your customers or stakeholders can erode dramatically with a few key strokes, so think before you post and get another opinion or review if you question your content.
• Think permanence: Once content is on the Internet, it is out there. Just think of how many deleted tweets live on past their owner’s moment of regret. Having the most transparent and honest content at the moment of posting should be everyone’s goal, regardless of their role.
• Keep up to date: Whether you schedule regular legal workshops or monitor the latest happenings with the FTC, those who rely on you to protect their brand will be thankful for your diligence and expertise.

While the rules and regulations of online disclosure will no doubt continue to evolve, these basic tips can help you safely navigate the social media landscape as it stands today. Of course, that last point is critical – we regularly seek the expertise of those operating in this emerging legal realm to ensure we are protecting both our clients and ourselves.  We recommend you do as well.