How well do you know Social Media Internet Law? It’s changing all the time, so you probably don’t know as much as you should. At our Social Media and Internet law panel on September 24, we learned some Do’s and Don’ts from two legal experts:
Robert Freund – Advertising and Business Litigator focusing on social media and influencer marketing, false advertising, partnership disputes and conflict resolution. Twitter: @RobertFreundLaw
Rebekah S. Guyon – Litigator representing clients in intellectual property, copyright, trademark, publicity, technology, privacy, entertainment, Internet law, First Amendment and Telephone Consumer Privacy Act disputes, and class action defense.
Endorsements, and Testimonials
Robert Freund started us off with a brief overview of the FTC’s role in monitoring endorsements and testimonials in advertising. Most of us already understand the importance of truth in advertising, but how up to date are you on the concept of “misleading” advertising? Or what your liability is? Robert took us through some elements to consider.
Do consumers know it’s an ad? With influencer content, the answer is almost always no, so always err on the side of caution. The influencer must say that he or she has been compensated or received free merchandise as payment – and by whom. The hashtag he/she uses must be clear in its meaning – e.g. #spon can’t be used in place of #sponsored. The disclosure must be clear and within the native ad itself, so no more hiding it in the fine print or behind a link in your tweet. (Or at the very bottom of your About section, as prominent YouTuber PewDiePie did. He was even cheeky enough to ponder why someone had even read that far – “Why are you even here?”).
What claims can you make? It had better be true, which sounds simple enough until you think like a lawyer. Ask yourself, “If the company made this claim, could we adequately support it?” The answer better be a definite yes. When in doubt, be vague, e.g. “Tastes great!” vs. “Strawberries are good for you.” But it doesn’t end there; claims made by an influencer must reflect a typical user experience, so no more “results may vary.”
Are you safe if you just retweet a glowing review of your product, or use it in an ad campaign? No, you are not. In sharing it, you take responsibility for its content, so make sure any claims made are ones that you can substantiate. And the fact that the customer believes it to be true is not enough.
Who is liable if things go south and you’re found to have violated FTC rules? Everyone who touched the ad. That means the influencer, the executive who approved it, the social media manager who posted it…anyone who touched the ad at all is liable.
California Consumer Privacy Act
If you’re not intimidated yet, you will be! Rebecca Guyon explained the California Consumer Privacy Act (CCPA) that goes into effect on January 1, 2020. Its basic tenet is that California residents have a right to know what data is being gathered about them and must have the ability to opt out. Although it doesn’t go into effect until January 1, it applies to all the information a company has collected in the last 12 months (excluding one-time transactions).
It consists of 5 basic rights:
- Notice of the personal information being collected and the purpose for collecting each category of information, at or before collection
- Disclosure of the categories of personal information collected about a consumer and copies of the specific personal information collected
- Disclosure of the categories of the personal information sold or disclosed about a consumer
- Opt-out of the sale of personal information
- Deletion of any personal information about a consumer that the business has collected.
There are three thresholds for when the CCPA applies to a company:
- Gross revenue > $25 million
- Personal information of 50,000 or more California residents
- 50% > of Revenue from sale of personal information
The law is frustratingly broad in who it applies to, and what it governs. If you think you’re already covered because of the changes you made with GDPR, you are not. The two laws are very different, so do your due diligence regarding CCPA.
After the presentations, we opened the floor to questions, which raised more questions, and if you weren’t there, you probably wish you were right about now. But we can’t possibly prove that. ? (Note: Did you miss this event in person? You’re in luck! Watch the entire event on our SMCLA YouTube channel here!
Mark your calendar for our next event on October 28th: Social Video-The Next Frontier: How to Best Use Legacy and Emerging Video Platforms. New location and time (6pm): Blank Spaces – 1450 2nd St, Santa Monica, CA 90401.