FTC Provides Guidance to Social Media Influencers in Live Twitter Chat

Influencer marketing is the popular practice of using individuals with large social media audiences—known as “influencers”—to advertise products and services through their social media accounts. The Federal Trade Commission (FTC) has made it clear that influencers must clearly and conspicuously disclose their relationships to brands when promoting or endorsing products through social media. To emphasize this point, the FTC sent letters to 90 influencers and marketers earlier this year reminding them of their obligation to make appropriate disclosures on ads. The FTC has also provided Endorsement Guides with answers to frequently asked questions from advertisers, ad agencies, bloggers, and others.

Most recently the FTC hosted a live Twitter chat to answer questions and provide guidance on influencer marketing. The FTC covered a number of topics during the chat, from the use of the hashtag “#ad” as a disclosure to built-in disclosure tools on popular social media platforms. Key takeaways from the Twitter chat are:

  • Using “#ad” is a sufficient disclosure, as long as it is hard to miss in the post.

  • Even if an influencer posts from abroad, U.S. law still applies if it is reasonably foreseeable that the posts will affect U.S. consumers.

  • Built-in tools such as the “Paid” tag on Facebook and “includes paid promotion” mark on YouTube are not sufficient to disclose that a post is an ad.

  • For Snapchat and Instagram posts, the FTC suggests superimposing a disclosure over the images. For a series of images, a disclosure on the first image may be sufficient, as long as it stands out, and viewers have time to see it.

The Twitter chat followed shortly after the FTC announced its first settlement with two social media influencers, Trevor Martin and Thomas Cassell, for endorsing the online gambling service CSGO Lotto without disclosing that they were the owners of the company, as well as paying other well-known social media influencers to promote the company without requiring them to disclose the payments in their posts.

Click here to read a transcript of the questions and the FTC’s responses during the official Twitter chat.

This post was written by Edward J. McAndrewPhilip N. YannellaKim Phan & Roshni Patel of Ballard Spahr LLP Copyright ©
For more legal analysis go to The National Law Review

Positive Media Exposure: Elevate Your Practice and Your Firm

Legal Marketing Association Southeastern Chapter

Your business is on the rise yet every time you scroll through your news feeds, read the newspaper, or watch a news show, you find your competitors highlighted everywhere instead of you and your business. You want this kind of coverage, but you are short on time due to your demanding work schedule, board activities, community involvement and family engagements. Dealing with the media also feels uncomfortable and you fear that reporters will not tell the story correctly. Sound familiar? This is what we discovered when we asked our clients (i.e. very smart lawyers we love to work with!)

To be fair, media interviews can be a daunting experience for almost anyone. These feelings are compounded by the notion that subject matter experts may believe that reporters and interviewers are out to get them. The truth is, the media should be treated just like a client. A great majority of reporters are cordial people who are assigned to cover a story on a topic. It is their job to talk with various sources, research the topic, and educate the public. Yet, almost always, reporters are on deadline while juggling other priorities assigned to them on any given day. Their challenge is to collect a depth of accurate information in order to inform the public and meet a tight deadline. Does that sound like a client? Have you ever received a call or an email from a client who needs to know the latest on a particular issue and has questions they need answered right away? It’s not that either is out to get you, rather each need to be educated so that they can succinctly and accurately inform their audience, be that a reader or a senior executive.

What you must realize is that the interviewee is often more knowledgeable on a subject than the interviewer, therefore you should approach the interview with full confidence and take advantage of the opportunity to provide useful and practical information. After all, this is your opportunity to shine and help educate the public. Here are some tips to ensure a successful media interview:

  • Similar to preparing for a case, successful media messages depend on preparation. Pick a story angle ahead of time and stick to it thought the interview. This bolsters your ability to serve as a subject matter expert.

  • Consider all of the difficult questions that may be asked and prepare answers. This critical step will help you from being caught off guard.

  • If you are asked a challenging question that you did not consider or are asked to talk about something that you simply can’t discuss, you can maintain control of the interview by using bridging techniques with phrases like: “before we leave the subject, let me add that …” “And the one thing that is important to remember is …” “While this is important, it is also important to remember that…”

  • Reporters love to use research and statistics in their stories as much as lawyers do. Feel free to prepare some stats and takeaways for reporters to help emphasize the story angle you are trying to promote.

  • Reporters are trained to listen. Just because a reporter puts away a notebook, a microphone or turns off a tape recorder doesn’t mean the interview is over and you can say anything without it being used.

  • Reporters hate when someone misleads or lies to them. They don’t like it when their stories have to be corrected through no fault of their own and because of inaccurate information provided to them. Accuracy is a gold standard for reporters. Help them achieve it and you can bet they will come back to you with another interview opportunity.

  • Instead of using industry jargon, speak in simple terms to appeal to the general public and potential clients. The reporter will most likely use those comments word-for-word which earns more thought leadership clout.

  • Body language can be just as important as words. Keep your arms loose and gesture naturally. This will help you appear calm and confident. Don’t cross your arms, your legs or put your hands in your pockets. Strive for a relaxed and happy face. Again, you are the expert who has the opportunity to share your knowledge.

  • Some reporters will ask you to spell your name on camera or tape so the editors can include it in the caption. If they don’t, be sure to spell your name and your firm’s name so they can include it in their story correctly.

  • Whether your story appears online, in print, radio or on television, don’t forget to engage in the digital space. Update your social media channels, website and blogs before and after the interview to continue the growth and expansion of your online brand.

Representing your business and knowledge base to the public is extremely important for you and your practice. Keeping these general media tips in mind puts you at a greater advantage to deliver a successful message and stay in front of your clients. With this said, remember to stay positive and have fun! And of course, call the Marketing Department or your public relations representative to work on a customized approach for each story.



Grow Your Email List for Free in 5 Simple Steps

The Rainmaker Institute

Lots of law firms struggle with compiling and maintaining a robust email marketing list, and they really struggle with how to keep adding qualified names to help them build a better list.  If you are recognizing yourself as you read this, then the good news is that you can actually build a great list for your firm and it doesn’t need to cost you a dime.

Here are five simple steps you can take to keep growing that important list of people you want to market to:

Grow Your Email List for Free in 5 Simple Steps, Money Tree

1.  Provide something of value.   Take the top 5 or 10 questions that clients ask you most often, write down the answers and turn that content into an e-book or report.  Post this on your website and blog and offer it as a free download to people who provide you with their name and email address.  The people who take you up on your offer are good prospects since they are clearly interested in the kind of problems you solve.  Add their names to your email marketing list to continue the conversation.

2.  Tell them what to do.  Your e-newsletter, your website and your blog should always contain easy-to-find calls-to-action that invite readers to subscribe, download a free report, make an appointment for a free consultation — anything you’d like them to do that could lead to business for you.  All your calls-to-action need to be simple and have the ability to collect email addresses for you.

3.  Keep reviewing your offers.  If your readers are not responding well to your calls-to-action or offers, then what you are offering is clearly not appealing to them.  First be sure that they are easy to understand.  If you’re still not getting a good response, change up your offers.  You should do this anyway every few months to keep things fresh.

4.  Use social media.  Using social media to spread the word about your valuable content and offers is a great way to attract more prospects that you might have otherwise missed.   LinkedIn groups are a great way to spread the word, but be sure you’re not being too promotional too often.

5.  Pay attention to the analytics.  You can gain valuable insight into what people are responding to on your website and in your e-newsletter by scouring the statistics.  Google Analytics is a free add-on for your website and blog and provides great information on what pages people are spending time on, and what isn’t working so well.  If you use Constant Contact or a similar service for your e-newsletters, these services provide information on how many people opened and read your newsletter and what they clicked on. 

By using these five simple steps, you are not just adding names to your list, you are getting truly qualified leads for your marketing efforts.



What’s the Deal? Why Do Accounting Firms Use Initials Instead of Names? – Part 2

Fishman Marketing logo

We know that for many professional-services firms (e.g. law, accounting, consulting, etc.), using initials is simply a necessary compromise — a less-controversial way to abbreviate the firm’s name.  You get to shorten a cumbersome name without seeming to favor the first one or two people over the others whose names come later on the door. It seems like a reasonable solution, but it’s actually a big step backwards, as we discussed in our previous “Don’t Use Initials” blog post.

Some of our valued blog readers wanted more supporting evidence, another way to explain it to their firm’s own professionals.  This post shows how I explain this issue to the marketing committees, to help them make a good decision:

1. Look at this random collection of accounting firm logos I found on Google. (Disclosure: We don’t work with any of these firms.)

Look carefully:

Initials Accounting firm Bad Logos Page One  copy

2. OK?  Got it?  Now I’ll shuffle them around and changed just one of the logos.

See the group below? Can you tell which of the following logos is different?

Initials Accounting firm Bad Logos Page TWO copy

You couldn’t tell, could you?  Of course not.

3.  OK, now I’m going to shuffle them around again and insert a new logo we designed recently.

Can you tell which of these logos, below, was added to the mix?

Initials Accounting firm Bad Logos Page THREE copy

It’s pretty obvious, right? 

Here’s the true test of marketing:

If you needed to find one of those companies on Google tomorrow, which one of them would you remember?

So, before changing a perfectly good name to a random collection of forgettable initials, think whether you’re advancing the firm’s strategic goals, or actually making your existing marketing challenges even harder to achieve.  Most of the time, a name, even a challenging one, is a better option than the firm’s initials.

Ross Fishman

Fishman Marketing, Inc.

Analog in a Digital World: Journalism and Blogs and Where to find Good Information

Bracewell & Giuliani Logo

In an article profiling John R. MacArthur, the publisher of Harper’s Magazine, MacArthur is quoted as saying, “I’ve got nothing against people getting on their weblogs, on the Internet and blowing off steam. If they want to do that, that’s fine. But it doesn’t pass, in my opinion, for writing and journalism.” The article goes on to note that MacArthur is “analog in his habits” because he “prints out articles to read” and that “[h]is version of searching for [a fact] on Google was yelling to a staff member, who hurried to deliver the information.”

McArthur certainly expresses a sympathetic position. A 24-hour news cycle has contributed to an environment where airtime needs to be filled – recent examples of well-publicized overexposure include CNN’s coverage of the Malaysian Air disappearance or the Casey Anthony trial. And because anyone with an internet connection and a Twitter account can “break” news, there is a race to the bottom as to which organization can print the news first as opposed to which can report it most accurately. The inevitably incendiary rush to judgment after the report of a rumor reported as fact seems only to support MacArthur’s position.

But where MacArthur and I part ways is in our view of what blogs or “lighter” commentary may provide. Instead of web commentary offered as simply “blowing off steam,” the internet is more of a tray of samples. You can try a little of anything, and if you’d like more, then that’s available to you as well.

That’s really the beauty of the internet, right? You can critique Buzzfeed’s lists, but they are a quick read that provide you with the opportunity to read more – possibly even from a true “writing and journalism” source. I mean, no one would think to use this blog exclusively as a defense to criminal charges or as any sort of compliance manual. But ideally, it would help you spot issues or pique your interest so that you read more on a particular topic, consult with counsel, or find a way to improve your workplace.

I like to think about the internet like a newspaper with only headlines. I can get the gist of the story from the headline, and if I’m interested, I can read more. (Example: “Salmon Spawning in Seattle” will not encourage me to read further. But hit me with “Cowboys Sweep Eagles, Giants” and I’m 100 percent in.)

MacArthur and I simply diverge on this implied concept that analog habits are somehow better than digital habits. Perhaps it is the trial lawyer side of me, but I try to be open to ways in which you can convey information. People learn in a variety of different ways: some learn by hearing, some learn by seeing, some learn by doing. Some have longer attention spans; some give hummingbirds a run for their money. So the more ways that you can find to reach people, the better odds of success you have in conveying information that they can use.

And that’s the takeaway point here (yay!). Imagine if your organization disseminated a ten-page written policy on what to do if a federal agent knocks on the door. That’s some important information right there. Is everyone going to read and understand it? Unlikely, right? Too busy to get to it right now, will read it tomorrow, and so on? Yup, that’s the MacArthur way. It just doesn’t work by itself.

Okay, change it up. Skip the written policy and instead conduct a 10-minute training session covering the key facts. Have you taught everyone everything they need to know? Probably not, but  you hit the high points. Even if a couple of folks dozing in the back of the room missed it. Right. That would be the Buzzfeed way. This doesn’t work by itself, either.

So instead, disseminate the policy to everyone, and you’ll capture the folks who learn by reading. And conduct your training session, and you’ll capture those folks who learn by listening. And then, as a bonus, rehearse the drill, so you capture those folks who learn by doing. It’s the last piece that most organizations miss, and thereby miss a huge opportunity to make sure their people understand the policies and that their policies actually work.

You can be analog like MacArthur or digital like Buzzfeed. But really effective communication is a blend of both … and just a touch more.


Google, the House of Lords and the timing of the EU Data Protection Regulation

Mintz Levin Law Firm

(LONDON) Could the European Court of Justice’s May 13, 2014 Google Spain decision delay the adoption of the EU Data Protection Regulation?

In the Google Spain “Right to be Forgotten” case, the ECJ held that Google must remove links to a newspaper article containing properly published information about a Spanish individual on the basis that the information is no longer relevant.  The Google Spain decision has given a much sharper focus to the discussion about the Right to be Forgotten that may soon be adopted as part of the new Data Protection Regulation that is expected to be passed sometime in 2015.  With the advent of the Google Spain decision, an issue that was on the sideline for most businesses – and which was expected by some to be quietly dropped from the draft Data Protection Regulation – has become a hot political issue.  The Right to be Forgotten as interpreted by the ECJ has garnered international attention, deepened the UK/continental EU divide, and ultimately could delay the adoption of a final form of the Data Protection Regulation.

The Google Spain case has been controversial for various reasons.  The decision takes an expansive approach to the long-arm reach of EU data protection law.  It holds search engine providers liable to comply with removal requests even when the information in the search results is true, was originally published legally and can continue to be made available by the original website.  The decision makes the search engine provider the initial arbiter of whether the individual’s right to have his or her information removed from publically available search results is outweighed by the public’s interest in access to that information.   (For a pithy analysis of the “public record” aspects of the case, see John Gapper’s “Google should not erase the web’s memory” published in the Financial Times.)

Google started implementing the ruling almost immediately, but only with respect to search results obtained through the use of its country-specific versions of its search engine, such aswww.google.es or www.google.co.uk.  The EU-specific search engine results notify users when some results have been omitted due to EU’s Right to be Forgotten.  (See the Telegraph’s ongoing list of the stories it has published that have been deleted from Google.co.uk’s search results to get a flavor of the sort of search results that have been deleted.)  However, the “generic” version of Google (www.google.com), which is also the default version for users in the US, does not omit the banned results.

Google has been engaged in an ongoing dialogue with EU data protection authorities regarding Google’s implementation of the Google Spain ruling.  According to some media reports, EU officials have complained that Google is implementing the ruling too broadly, allegedly to make a political point, while other commentators have noted that the ruling give Google very few reference points for performing the balancing-of-rights that is required by the ruling.  Perhaps more interestingly, some EU officials want Google to apply the Right to be Forgotten globally (including for google.com results) and without noting that any search results have been omitted (to prevent any negative inferences being drawn by the public based on notice that something has been deleted).  If the EU prevails with regard to removing personal data globally and without notice that the search results contain omissions, critics who are concerned about distortions of the public record and censorship at the regional level will have an even stronger case.   Of course, if truly global censorship becomes legally required by the EU, it seems likely that non-EU governments and organizations will enter the dialogue with a bit more energy – but even more vigorous international debate does not guarantee that the EU would be persuaded to change its views.

The ongoing public debate about the potentially global reach of the Right to be Forgotten is significant enough that it could potentially delay agreement on the final wording of the Data Protection Regulation.  Recently, an important committee of the UK’s House of Lords issued a report deeply critical of the Google Spain decision and the Right to be Forgotten as enshrined in the draft Data Protection Directive. Additionally, the UK’s Minister of Justice, Simon Hughes, has stated publically that the UK will seek to have the Right to be Forgotten removed from the draft Data Protection Regulation.  The impact of the UK’s stance (and the efforts of other Right to be Forgotten critics) on the timing of the adoption of the Regulation remains to be seen.  In the meantime, search companies will continue to grapple with compliance with the Google Spain decision.  Other companies that deal with EU personal data should tune in as the EU Parliament’s next session gets underway and we move inevitably closer to a final Data Protection Regulation. 



New Jersey Suit Against School District Regarding Tweet Settles

Jackson Lewis Law firm

As previously reported, in a March 2014 filing titled H.W. v. Sterling High School District, a New Jersey high school student filed suit claiming school officials had violated her constitutional rights when they punished her for content she posted on Twitter which criticized Sterling High School’s principal.

twitterThe settlement, which was approved by the Sterling High School District in April and entered by the Court on July 29, 2014, provides that the district will reimburse the student $9,000 for her legal fees.   However, the district will not pay additional damages to the student.  In addition, the school district agreed to revoke punishments imposed against the student for her Twitter postings, expunge documents related to the incident from the student’s academic record, and abandon its attempted requirements for drug testing of the student.  Specifically, the agreement provides that the student is eligible for graduation upon completion of outstanding assignments, is allowed to attend the senior class trip to Florida, and if the student does not seek press coverage or disclose the settlement terms she will be allowed to participate in prom and the graduation ceremony.

Beyond agreements directly between the school district and the student, the settlement also calls of the school to modify its student handbook to specify that administrators “may be monitoring student discussions on Facebook, Twitter or other social media outlets and may seek to impose penalties in accordance with the student code of conduct if such discussions cause a substantial disruption at the school.”