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May 09, 2018

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Over the last few days, we've talked about brands getting in trouble with the FTC for social media campaigns. So if the FTC is just going after brands for this stuff, that means influencers are in the clear, right? Well, not exactly.

In the fall of 2016, the Center for Digital Democracy ("CDC"), a self-proclaimed do-gooder group, requested that the FTC bring enforcement actions against 113 Influencers. Why you might ask? They said that Instagram has become "a platform for disguised advertising" directed toward children who "are unknowingly being influenced by corporations through the ostensibly benign medium of their role models." The CDC also complained about "the serial non-compliance with FTC's endorsement policy" by Instagram Influencers.

You might think they were just crying wolf, but wait - they were right! The FTC looked through a ton of Instagrams posted by Dwight Howard, Rihanna, David Beckham, and Kourtney Kardashian, to name a few, and found that they weren't always clear about what was sponsored and what wasn't. So the FTC sent out over 90 letters to influencers and markets, telling them to clearly and conspicuously disclose any relationships they have to brands when promoting or endorsing products on their social media.

Okay, you say, but how am I supposed to read through 90 letters and figure out what I need to do? Don't worry, we're breaking it down into a few basic take-away lessons:

  • Keep your disclosures unambiguous. Saying "thank you" is polite, but doesn't tell people anything about your relationship with the brand.
  • Make the disclosure hard to miss. This means people shouldn't have to click "see more" to find it.
  • Don't bury your disclosure hashtags! When a post includes multiple hashtags or links readers are likely to skip over them. If you use all of the available 30 Instagram hashtags, lead with the important disclosures.

As the FTC said, avoid "#HardtoRead #BuriedDisclosures #inStringofHashtags #SkippedByReaders"

Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation, and privacy.

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