Media Education Is Crucial to Preparing Young Attorneys to Speak on the Record

Last month, a photojournalist for The Daily Northwestern, Northwestern University’s campus newspaper, captured photographs of student protestors who rushed a lecture hall where former Attorney General Jeff Sessions was speaking on campus. One of the pictures the photojournalist published featured a protestor sprawled on the floor. Students involved in the protest reacted with sharp criticism: being photographed in public had caused the protestor trauma, they argued. In addition, the reporters who used the student directory to attempt to contact protestors for quotes had invaded those students’ privacy.

In response to this pressure, editors at the newspaper took the photographs down and published an apology — steps that were immediately scorned by seasoned media professionals who explained that reporting on public events, through gathering quotes and taking pictures, is one of the most basic functions of journalism.

As with many stories that go viral, overheated Twitter commentary led to cross-generation attacks, straw-man arguments and handwringing over the death of traditional media. But when you push aside the noise around this story, it becomes clear that what happened at Northwestern illuminates an interesting disconnect between young people on the cusp of the Millennial-Z generations and the rest of us: we have different ideas about the purpose and function of traditional media.

What does this have to do with legal marketing? The oldest members of Generation Z are preparing to enter law school in the fall of 2020, which means firms are just a few years out from welcoming this new crop of lawyers. Forward-thinking law firms have long understood the value of media training in helping their attorneys build fruitful relationships with reporters and manage individual and firm brands across multiple channels. The Northwestern case, however, demonstrates that firms must also be prepared to offer some basic media education to their business development curriculum.

Younger lawyers may have a steep learning curve if they want to launch their careers with a productive media strategy. Here are three lessons firms will need to figure out how to teach them:

It’s hard to understand what you don’t consume. As social media has become such a central part of the way we broadcast and receive information, it fills the role traditional media used to play in some people’s lives. Not only does this mean that fewer people are reading the newspaper and relying on quality objective journalism to understand the world, but that inexperience with traditional media also breeds ignorance about what reporters, including specialists in the legal media, do all day and why they do it.

A young attorney who does not read the most important media outlets in the legal industry may not have a proper understanding of how law leaders use the information and data reporters publish to make business decisions and innovate at the practice and firm level. While managing partners may not always be pleased with the coverage of their firm, they understand and accept that the health of the industry relies on these sources of objective information. What’s more, for every article that makes a law partner squirm, there is one that amplifies a firm’s accomplishments for the entire industry to see.

Those media mentions are worth their weight in gold, but you have to respect and understand the institution of legal journalism as a whole to ever have a chance at winning one for yourself or your firm.

Not all media is the same. The media landscape of 2019 exists across four categories: paid, owned, shared, and earned. Paid media is sponsored content and pay-to-play awards and features. Owned media is the content your firm creates and distributes through your website and newsletter. Shared media is social media and all the content it spreads so rapidly. And earned media encompasses mentions in traditional media outlets.

A sophisticated communications strategy creates a plan for all four categories and, importantly, recognizes the strengths and weaknesses of each one. The first step to making sense of it all is to recognize the tension between control and authority. Media that allows your firm complete control over the content — your Twitter feed, for example — does not carry much authority. Consumers understand that anyone can make any claim they like on the internet. Media outlets that carry authority in the industry — such as Bloomberg Law or the Wall Street Journal — are not going to offer you much control over the content. Their independence is what gives them authority.

Attorneys who are too focused on controlling the message will miss out on the chance to see their work featured in an outlet that prospective clients and recruits actually trust.

Your right to privacy is not unlimited in scope. While individuals, of course, have the right to live their private lives free from interference, attorneys engaged in work on behalf of law firms and companies, which in many cases involves actions that are matters of public record, should expect to occasionally face questions about that work. Fearing these encounters or, worse, painting this healthy professional interaction as some kind of victimization, is bad for both the legal industry and an attorney’s own career development. Attorneys who understand the role traditional media plays in their business development make themselves available to reporters and are ready to speak off the cuff about their cases, clients and the broader context of legal questions they spend time on.

Savvy lawyers have confidence that their integrity and expertise will stand up to scrutiny by a reporter, and they extend professional courtesy to journalists doing the hard work of chronicling a complex and dynamic industry.

As the media landscape continues to evolve, marketers and firm leaders will have to work harder than ever to play in all four media categories — paid, owned, shared and earned — and prepare their attorneys to build productive relationships with the reporters who can help them reach their desired audience.


© 2019 Page2 Communications. All rights reserved.

This article was written by Debra Pickett of Page 2 Communications.
For more advice for young lawyers, see the National Law Review Law Office Management section.

“OK, Boomer!”: Not Okay In the Office

As recently highlighted by the New York Times, a new phrase emblematic of the real or perceived “War Between the Generations” has gone viral: “OK, Boomer!”  The phrase, popularized on the Internet and, in particular, Twitter by Generation Z and Millennials, has been used to dismiss baby boomers’ thoughts and opinions, sometimes viewed by younger generations as paternalistic or just out of step.

And, the phrase isn’t just living in Twitter feeds and the comments sections of opinion pieces.  There is “OK, Boomer!” merchandise and, just last week, a 25 year-old member of the New Zealand Parliament used the phrase to dismiss a fellow lawmaker’s perceived heckling during a debate about climate change.

While many may find “OK, Boomer!” a harmless way to point out generational differences, the phrase’s popularity could lead to problems once it creeps into the workplace.  Age (over 40) is a protected category under both California law (i.e., the Fair Employment and Housing Act) and federal law (i.e., the Age Discrimination in Employment Act).  Whether the speaker is well-intentioned or not, dismissive attitudes about older workers could form the basis of claims for discrimination and/or harassment.  And, as one radio host recently opined, the phrase “OK, Boomer!” may be regarded by some as an outright slur.

Generation Z and Millennial employees understand that using derogatory or dismissive comments related to gender, race, religion, national origin, disability and sexual orientation are inappropriate.  Yet, for some reason, some may not have made the leap with regard to insidious/disparaging comments about a co-worker’s age.  Given the prevalence of age discrimination lawsuits, employers should take heed and consider reminding their workforce about the impropriety of this and other age-related phrases, and train their employees to leave the generation wars at the door.


© 2019 Proskauer Rose LLP.

For more on employment discrimination see the National Law Review Labor & Employment law page.

China’s TikTok Facing Privacy & Security Scrutiny from U.S. Regulators, Lawmakers

Perhaps it is a welcome reprieve for Facebook, Google and YouTube. A competing video-sharing social media company based in China has drawn the attention of U.S. privacy officials and lawmakers, with a confidential investigation under way and public hearings taking place on Capitol Hill.

Reuters broke the story that the Treasury Department’s Committee on Foreign Investment in the United States (CFIUS) is conducting a national security review of the owners of TikTok, a social media video-sharing platform that claims a young but formidable U.S. audience of 26.5 million users. CFIUS is engaged in the context of TikTok owner ByteDance Technology Co.’s $1 billion acquisition of U.S. social media app Musical.ly two years ago, a deal ByteDance did not present to the agency for review.

Meanwhile, U.S. legislators are concerned about censorship of political content, such as coverage of protests in Hong Kong, and the location and security of personal data the company stores on U.S. citizens.

Sen. Josh Hawley (R-Mo.), Chairman of the Judiciary Committee’s Subcommittee on Crime and Terrorism, invited TikTok and others to testify in Washington this week for hearings titled “How Corporations and Big Tech Leave Our Data Exposed to Criminals, China, and Other Bad Actors.”

While TikTok did not send anyone to testify, the company’s recently appointed General Manager for North America and Australia Vanessa Pappas, formerly with YouTube, sent a letter indicating that it did not store data on U.S. citizens in China. She explained in an open letter on the TikTok website, which reads similarly to that reportedly sent to the subcommittee, that the company is very much aware of its privacy obligations and U.S. regulations and is taking a number of measures to address its obligations.

For nearly eight years Pappas served as Global Head of Creative Insights and before that Audience Development for YouTube. In late 2018 she was strategic advisor to ByteDance, and in January 2019 became TikTok’s U.S. General Manager. In July her territory expanded to North America and Australia. Selecting someone who played such a leadership position for YouTube, widely used and familiar to Americans, to lead U.S. operations may serve calm the nerves of U.S. regulators. But given U.S. tensions with China over trade, security and intellectual property, TikTok and Pappas have a way to go.

Some commentators think Facebook must enjoy watching TikTok getting its turn in the spotlight, especially since TikTok is a growing competitor to Facebook in the younger market. If just briefly, it may divert attention away from the attention being paid globally to the social media giant’s privacy and data collection practices, and the many fines.

It’s clear that TikTok has Facebook’s attention. TikTok, which allows users to create and share short videos with special effects, did a great deal of advertising on Facebook. The ads were clearly targeting the teen demographic and were apparently successful. CEO Mark Zuckerberg recently said in a speech that mentions of the Hong Kong protests were censored in TikTok feeds in China and to the United States, something TikTok denied. In a case of unfortunate timing, Zuckerberg this week posted that 100 or so software developers may have improperly accessed Facebook user data.

Since TikTok is largely a short-video sharing application, it competes at some level with YouTube in the youth market. In the third quarter of 2019, 81 percent of U.S. internet users aged 15 to 25 accessed YouTube, according to figures collected by Statista. YouTube boasts more than 126 million monthly active users in the U.S., 100 million more than TikTok.

Potential counterintelligence ‘we cannot ignore’

Last month, U.S. Senate Minority Leader Chuck Schumer (D-NY) and Senator Tom Cotton (R-AR) asked Acting Director of National Intelligence to conduct a national security probe of TikTok and other Chinese companies. Expressing concern about the collection of user data, whether the Chinese government censors content feeds to the U.S., as Zuckerberg suggested, and whether foreign influencers were using TikTok to advance their objectives.

“With over 110 million downloads in the U.S. alone,” the Schumer and Cotton letter read, “TikTok is a potential counterintelligence threat we cannot ignore. Given these concerns, we ask that the Intelligence Community conduct an assessment of the national security risks posed by TikTok and other China-based content platforms operating in the U.S. and brief Congress on these findings.” They must be happy with Sen. Hawley’s hearings.

In her statement, TikTok GM Pappas offered the following assurances:

  • U.S. user data is stored in the United States with backup in Singapore — not China.
  • TikTok’s U.S. team does what’s best for the U.S. market, with “the independence to do so.”
  • The company is committed to operating with greater transparency.
  • California-based employees lead TikTok’s moderation efforts for the U.S.
  • TikTok uses machine learning tools and human content reviews.
  • Moderators review content for adherence to U.S. laws.
  • TikTok has a dedicated team focused on cybersecurity and privacy policies.
  • The company conducts internal and external reviews of its security practices.
  • TikTok is forming a committee of users to serve them responsibly.
  • The company has banned political advertising.

Both TikToc and YouTube have been stung by failing to follow the rules when it comes to the youth and children’s market. In February, TikTok agreed to pay $5.7 million to settle the FTC’s case which allege that, through the Musical.ly app, TikTok company illegally collected personal information from children. At the time it was the largest civil penalty ever obtained by the FTC in a case brought under the Children’s Online Privacy Protection Act (COPPA). The law requires websites and online services directed at children obtain parental consent before collecting personal information from kids under 13. That record was smashed in September, though, when Google and its YouTube subsidiary agreed to pay $170 million to settle allegations brought by the FTC and the New York Attorney General that YouTube was also collecting personal information from children without parental consent. The settlement required Google and YouTube to pay $136 million to the FTC and $34 million to New York.

Quality degrades when near-monopolies exist

What I am watching for here is whether (and how) TikTok and other social media platforms respond to these scandals by competing on privacy.

For example, in its early years Facebook lured users with the promise of privacy. It was eventually successful in defeating competitors that offered little in the way of privacy, such as MySpace, which fell from a high of 75.9 million users to 8 million today. But as Facebook developed a dominant position in social media through acquisition of competitors like Instagram or by amassing data, the quality of its privacy protections degraded. This is to be expected where near-monopolies exist and anticompetitive mergers are allowed to close.

Now perhaps the pendulum is swinging back. As privacy regulation and publicity around privacy transgressions increase, competitive forces may come back into play, forcing social media platforms to compete on the quality of their consumer privacy protections once again. That would be a great development for consumers.

 


© MoginRubin LLP

ARTICLE BY Jennifer M. Oliver of MoginRubin.
Edited by Tom Hagy for MoginRubin LLP.
For more on social media app privacy concerns, see the National Law Review Communications, Media & Internet law page.

Can You Spy on Your Employees’ Private Facebook Group?

For years, companies have encountered issues stemming from employee communications on social media platforms. When such communications take place in private groups not accessible to anyone except approved members, though, it can be difficult for an employer to know what actually is being said. But can a company try to get intel on what’s being communicated in such forums? A recent National Labor Relations Board (NLRB) case shows that, depending on the circumstances, such actions may violate labor law.

At issue in the case was a company that was facing unionizing efforts by its employees. Some employees of the company were members of a private Facebook group and posted comments in the group about potentially forming a union. Management became aware of this activity and repeatedly asked one of its employees who had access to the group to provide management with reports about the comments. The NLRB found this conduct to be unlawful and held: “It is well-settled that an employee commits unlawful surveillance if it acts in a way that is out of the ordinary in order to observe union activity.”

This case provides another reminder that specific rules come into play when employees are considering forming a union. Generally, companies cannot:

  • Threaten employees based on their union activity
  • Interrogate workers about their union activity, sentiments, etc.
  • Make promises to employees to induce them to forgo joining a union
  • Engage in surveillance (i.e., spying) on workers’ union organizing efforts

The employer’s “spying” in this instance ran afoul of these parameters, which can have costly consequences, such as overturned discipline and backpay awards.


© 2019 BARNES & THORNBURG LLP

For more on employees’ social media use, see the National Law Review Labor & Employment law page.

To Stalk or Not to Stalk . . . That Is the Question – Using Social Media for Applicant Review

Now more than ever, employers are using social media to screen job applicants. According to a 2018 survey, 70 percent of employers use social media to research candidates. Using social media to research job applicants can provide you with useful information, but it can also get you into trouble.

When you review an applicant’s social media account, such as Facebook, LinkedIn, Twitter, etc., you may learn information regarding the applicant’s race, sex, religion, national origin, or age, among other characteristics.

As our readers are aware, a variety of state and federal laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act prohibit employers from choosing not to hire a candidate based on a number of legally protected classes. Just as it would be unlawful to ask an applicant if he or she has a disability during an interview and fail to hire that applicant based on his or her disability, it would also be illegal not to hire an applicant because you observed a Facebook post in which she expressed her hope to be pregnant within the next six months.

Consider the following best practice tips for using social media to screen applicants:

  1. Develop a Policy and Be Consistent – Implement a policy detailing which social media websites you will review, the purpose of the review and type of information sought, at what stage the review will be conducted, and how much time you will spend on the search. Applying these policies consistently will help to combat claims of discriminatory hiring practices should they arise.
  2. Document Your Findings – Save what you find, whether it is a picture or a screenshot of a comment the applicant made. What you find on social media can disappear as easily as you found it. Protect your decision by documenting what you find. In case the matter is litigated, it can be produced later.
  3. Wait Until After the Initial Interview – Avoid performing a social media screening until after the initial interview. It is much easier to defend a decision not to interview or hire an applicant if you do not have certain information early on.
  4. Follow FCRA Requirements – If you decide to use a third party to perform social media screening services, remember that these screenings are likely subject to the Fair Credit Reporting Act requirements because the screening results constitute a consumer report. This means the employer will be required to: 1) inform the applicant of the results that are relevant to its decision not to hire; 2) provide the applicant with the relevant social media document; 3) provide the applicant notice of his or her rights under the FCRA and; 4) allow the applicant to rebut the information before making a final decision.
  5. Do Not Ask for Their Password – Many states have enacted laws that prohibit an employer from requesting or requiring applicants to provide their login credentials for their social media and other internet accounts. Although some states still allow this, the best practice is not to ask for it. Further, while it is not illegal to friend request a job applicant, proceed with caution. Friend requesting a job applicant (and assuming the applicant accepts the request) may provide you with greater access to the applicant’s personal life. Many people categorize portions of their profiles as private, thereby protecting specific information from the public’s view. If you receive access to this information you may gain more knowledge regarding the applicant’s protected characteristics. If you are going to friend request applicants, you should include this in your written policy and apply this practice across the board.

© 2019 Foley & Lardner LLP

More information for employers considering job applicants on the National Law Review Labor & Employment law page.

Top 10 Questions Lawyers Ask About LinkedIn

Most lawyers know that LinkedIn is the most-popular social media site for business networking and meaningful interactions with people relevant to their practices. While LinkedIn has emerged as the primary business social media site, the do’s and don’ts of how to interact on the platform can be a bit of a mystery. Over the last several years, I have worked with attorneys across the country on how to use LinkedIn. The list here covers the most-commonly asked questions from attorneys about how to set up and manage a LinkedIn presence.

Q: If I’m not going to post anything on LinkedIn, why do I need a profile?

Even if you don’t plan on interacting and sharing information on LinkedIn, you should still create a profile. Think of LinkedIn as a free, high-quality directory listing that you control. When people search for your name online, LinkedIn profiles typically place high in search results. Therefore, having a well-optimized LinkedIn profile gives you strong online visibility.

Additionally, LinkedIn has more than 180 million members in North America and 645 million members worldwide. Members use the platform as a search engine to find people in specific job positions in areas around the globe. Not having a presence means missing out on becoming part of the most-inclusive business network available online.

The basic elements of a complete LinkedIn profile include:

  • A well-optimized headline — Use your title, but also include your generic position as well (lawyer or attorney) to help improve your visibility in LinkedIn searches.
  • A professional photo — No kids or pets, please.
  • Your location, industry and contact information.
  • Your experience — Tag your current employer in your experience section so your profile appears on the “Employees” list of your firm’s LinkedIn page.
  • Your education.

Q: Do I connect with everyone who asks?

No. While you don’t have to actually know everyone you connect with on LinkedIn, you do want to vet requests to make sure you share some level of business interest — you work in the same industry, have shared connections, live in the same region, etc. If a connection request comes from someone completely unrelated to your business world, you do not have to accept it.

Q: Should I personalize my connection requests?

When you’re asked to connect with someone, LinkedIn gives you the option to send the person a customized message. Including a note to a connection request gives an added layer of personalization and may initiate a back-and-forth conversation. Don’t overthink your message, though. Sometimes just a “It was great to meet you at the conference yesterday”-type message is adequate.

Q: Should I look at other people’s profiles in private or “full profile” mode?

LinkedIn allows you to control whether people see that you viewed their profile. Before you scope people out, think about your desired visibility. Do you want the person to know you viewed their profile or would you rather remain anonymous? Sometimes profile-viewing is the first step in connecting, so when appropriate, I usually recommend that people view in full-profile mode. Obviously, in certain circumstances, you may benefit from using private mode, but be aware that when you switch, LinkedIn disables the “Who Viewed Your Profile” feature and erases your viewer history.

Q: How often should I post?

Posting frequency on LinkedIn should be managed with thoughtful intent. Too many posts may clutter your connections’ feeds, leading them to block you, but posting only occasionally is a lost opportunity to stay top of mind with your network. I generally recommend that attorneys post no more than once a day unless there’s something really important that has to be shared, in which case it is often better to “like” or “share” someone else’s post. When you “like” a post, the original post shows up framed in your feed. This approach achieves the goal of sharing the content without seeming overly self-promotional and sets up the possibility of a reciprocated “like” in the future. Whether you share twice a week or seven times a week, remember that quality is much more important than quantity.

Q: Should I only post content from my firm’s website?

Mix it up a bit. Keep in mind the rule that “you are what you share” when determining what to post on LinkedIn. Just posting content from the firm’s website will come across as overly self-promotional, and doesn’t position you as a well-rounded thought leader who enhances their knowledge base from multiple sources. Good sources to consider include your firm’s resource information, mainstream media outlets, trade and business publications, local outlets, and any other reliable online publishers.

Q: Do I have to use an image with my posts?

Always try to accompany your post with a related image. Stock photos are fully acceptable on LinkedIn as long as there’s a connection between the text and the graphic. Original photos are ideal but not always possible. Some firms create an image template where they can swap out an attorney’s headshot and change the headline text. These enforce a strong brand presence — but shouldn’t be overused because they can lead to a dull uniformity in your post feed.

LinkedIn also allows you to embed videos in your posts, as long as they are under 10 minutes in length. Consider posting original video content in your feed, and become your own broadcast channel!

Q: Should I use hashtags in LinkedIn posts?

LinkedIn posts can include hashtags, but keep in mind that popular hashtags on one social media platform are not the same on another platform. For instance, you would almost never use Instagram hashtags on LinkedIn. When you compose a post, LinkedIn suggests related hashtags that you can choose from, or you can do your own hashtag research using the “#” symbol in the search field and seeing how many people follow a given hashtag. Find hashtags that are relevant to your post and have enough search volume to make them worthwhile.

Q: Should I use LinkedIn’s publishing section?

Yes! Whenever you publish an original blog or article on your firm’s website, you should always replicate it on LinkedIn’s publishing platform. Even third-party publications will often let you republish bylined articles on your LinkedIn account with attribution. After all, it gives them added visibility.

Q: Is it worth paying for a premium account?

If you are looking for basic visibility, networking and engagement functionality, a premium account is not necessary. For attorneys looking to deepen their prospecting capabilities and sales funnel features, upgrading to premium is definitely worth the cost. If you’re not sure, try out the free 30-day trial that LinkedIn offers.

If you still have questions about LinkedIn, the LinkedIn help center publishes a well-organized library of information about managing profiles and engaging on their platform. Feel free to connect with me on LinkedIn to recommend additions to my top 10 list.


© Copyright 2008-2019, Jaffe Associates

ARTICLE BY Melanie Trudeau of Jaffe.
For more on social media for lawyers, see the National Law Review Law Office Management page.

FTC Attorney on Endorsement Guide Compliance

Influencer marketing and review websites have attracted a great deal of attention recently by states and federal regulatory agencies, including the FTC.  The FTC’s Endorsement Guides addresses the application of Section 5 of the FTC Act to the use of endorsements and testimonials in advertising.

At their core, the FTC Endorsement Guides (the “Guides”) reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading.  The Guides suggest several best practices, including, but not limited to the following:

  1. Influencers must be legitimate and bona fide users, and endorsements must reflect honest opinions.
  2. Endorsers cannot make claims about a product that would require proof the advertiser does not have.  Blogger and brands are potentially subject to liability for claims with no reasonable basis therefor.
  3. Clearly and conspicuously disclose material connections between advertisers and endorsers (e.g., a financial or family relationship with a brand)
  4. To make a disclosure “clear and conspicuous,” advertisers should use plain and unambiguous language and make the disclosure stand out.  Consumers should be able to notice the disclosure easily.  They should not have to look for it.  Generally speaking, disclosures should be close to the claims to which they relate; in a font that is easy to read; in a shade that stands out against the background; for video ads, on the screen long enough to be noticed, read, and understood; and for audio disclosures, read at a cadence that is easy for consumers to follow and in words consumers will understand.
  5. Never assume that a social media platform’s disclosure tool is sufficient.  Some platforms’ disclosure tools are insufficient.  Placement is key.
  6. Avoid ambiguous disclosures like #thanks, #collab, #sp, #spon or #ambassador.  Clarity is crucial.  Material connection disclosures must be clear and unmistakable.
  7. Do not rely on a disclosure placed after a CLICK MORE link or in another easy-to-miss location.
  8. Advertisers that use bloggers and other social media influencers to promote products are responsible for implementing reasonable training, monitoring and compliance programs (e.g., educating members about claim substantiation requirements and disclosing material connections, searching for what people are saying and taking remedial action).
  9. Statements like “Results not typical” or “Individual results may vary” are likely to be interpreted to mean that the endorser’s experience reflects what others can also expect.  Therefore, advertisers must have adequate proof to back up the claim that the results shown in the ad are typical, or clearly and conspicuously disclose the generally expected performance in the circumstances shown in the ad.
  10. Brands can ask customers about their experiences and feature their comments in ads.  If they have no reason to expect compensation or any other benefit before they give their comments, consult with an FTC CID and defense attorney to assess whether a disclosure is necessary.  If customers have been provided with a reason to expect a benefit from providing their thoughts about a product, a disclosure is probably necessary.

What about affiliate marketers with links to online retailers on their websites that get compensated for clicks or purchases?  According the FTC, the material relationship to the brand  must be clearly and conspicuously so that readers will be able to decide how much weight to give the endorsement.  In some instances – like when the affiliate link is embedded in a product review – a single disclosure may be adequate.

When the review has a clear and conspicuous disclosure of a material relationship and the reader can see both the review containing that disclosure and the link at the same time, readers may have the information they need.  However, if the product review containing the disclosure and the link are separated, readers may not make the connection.

Never put disclosures in obscure places, behind a poorly labeled hyperlink or in a “terms of service” agreement.  That is not enough.  Neither is placing a disclosure below the review or below the link to the online retailer so readers would have to keep scrolling after they finish reading.

Consumers should be able to notice disclosures easily.

U.S. regulators are not the only ones policing influencer disclosures.  In fact, the Competition and Markets Authority, the British government agency that regulates advertising, recently sent numerous warning letters to British celebrities and other social media influencers.  The CMA has also recently released its guidelines for influencers.

The FTC has already demonstrated that it monitors accounts of popular influencers.  It has also demonstrated that it can and will initiate investigations and enforcement actions.  Brands are well-advised to review promotional practices, implement written policies and monitoring protocols.


© 2019 Hinch Newman LLP

For more on influencers, endorsement & advertising, see the National Law Review Communications, Media & Internet law page.

Uh-Oh: Company’s Social Media Policy Ruled Unlawful

Facebook. Instagram. Twitter. Snapchat. As the list of social media platforms continues to grow and people increasingly choose to use them as communication vehicles, more and more employers are drafting and implementing policies seeking to regulate their employees’ posted content and messaging on those sites. A recent National Labor Relations Board (NLRB) advice memo, however, is another reminder that companies – including non-union ones – should keep in mind there are legal parameters that come into play in this sphere.

At issue in the case was a company’s social media policy that prescribed certain expectations for employees on social sites and proscribed various types of statements on such platforms. The board ultimately concluded two provisions in the policy ran afoul of the National Labor Relations Act (NLRA).

The first provision found to be unlawful stated:

“Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that are false about Friendship Ridge, fellow employees, owners, residents, suppliers, people working on behalf of Friendship Ridge.”

The NLRB determined this was unlawful because “Board and court precedent has long recognized that employees have the right to make a wide variety of statements in the context of a labor dispute, including inaccurate statements, as long as those statements do not constitute malicious defamation.” In other words, the proscription here was too broad.

The second provision held to be unlawful provided:

“Maintain the confidentiality of Friendship Ridge private or confidential information. Do not post internal reports, policies, procedures or other internal business related confidential communications.”

This was found to violate the NLRA because “the requirement that employees keep confidential the Employer’s ‘policies, procedures’ would reasonably be interpreted by employees to include information about their terms and conditions of employment.” Under the NLRA, employees have the presumptive right to disclose and discuss the terms and conditions of their employment – such as wage rates – so this too was overbroad.

While having a social media policy may make sense, it is important for any company that decides to maintain such a policy to keep in mind that there are limits on what can be proscribed.

 


© 2019 BARNES & THORNBURG LLP

For more on workplace & social media see the Labor & Employment law page of the National Law Review.

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

#ShowMeTheMoney: Sofia Vergara’s Settlement of Social Media False Endorsement Lawsuit Highlights Modern Legal Issue

Social Media false endorsementLast month, Sofia Vergara, star of ABC’s Modern Family, reached a settlement in a lawsuit brought by the actress against beauty company Venus Concept for alleged improper use of her likeness on television and in social media, which Vergara alleged created the false impression that she endorsed the Venus Concept brand or its treatment products. In the lawsuit, Vergara claimed $15 million in damages.

The origin of the dispute dates back to 2014, when Vergara posted a selfie to her WhoSay account (an Instagram-like social media app) during a “skin tightening” massage with the Venus Legacy machine. The posted image featured a close-up of a portion of Vergara’s face, with a massage technician using the machine on her lower back, and a large poster of Marilyn Monroe’s laughing face hanging on the wall in the background. In the post, Vergara included the caption “What is so funny Marilyn?? Legacy massage at @drlancerrx.”

Venus Concept later used the photo during a television segment on the show “Extra!,” and posted it to several social media pages, using captions such as “Loved by bombshell actress Sofia Vergara[,]” which, in her suit, Vergara alleged made it appear like she endorsed the massage treatment. However, according to her claims, Vergara thought the treatment was a “waste of time and money with little in the way of any results” and that she “would not use it again and certainly would not endorse it nor agree to appear in an international advertisement campaign to promote it.”

Vergara, alleged to be the highest-paid woman in television, claimed she in the past made $15 million for endorsement deals, and therefore sued Venus Concept (and various affiliated companies) for that exact amount, i.e., what she allegedly would have been paid for an endorsement. Previously, Vergara has appeared in campaigns for such brands as CoverGirl, Diet Pepsi, Kmart, Comcast Xfinity, State Farm, Rooms To Go, Head and Shoulders, and Quaker Oats.

While the lawsuit did not reach a final ruling on the merits (and the settlement amount is undisclosed), the case is yet another illustration of the very real modern phenomenon of implied false endorsement litigation surrounding companies’ use of celebrities’ image, likeness, or work in social media promotion or advertising. For example, in 2015, the pioneering hip-hop group Beastie Boys successfully sued Monster Energy based on the beverage company’s unauthorized use of certain Beastie Boys songs in an online promotional video. The Beastie Boys claimed false endorsement and copyright infringement after the montage of Beastie Boys hits was posted on YouTube and Facebook. The Beastie Boys have long declined to license their music for use in advertisements, and, similar to Vergara’s claim, maintained that use of their songs without permission in Monster’s online commercial gave the consuming public the false impression that they endorsed Monster, its advertising campaign, or its products.

The omnipresence and popularity of social media platforms such as Twitter and Instagram have led to a sea change in how brands and advertisers seek to reach consumers, with paid (but not always disclosed) social media endorsements by celebrities and athletes driving consumer demand for products like never before, as well as the creation of a cottage-industry of “social influencers,” namely, aspirational fashionistas, models, or musicians, paid by brands to endorse particular products via social media due to the volume of their Instagram account followers. Indeed, partnering with such popular social media content creators is now one of the most effective ways for brands to reach and engage with consumers who spend hours each day on social media platforms and look to top Instagram influencers to make purchasing decisions.

In that past, celebrity false endorsement suits often involved an advertiser imitating a celebrity’s likeness or voice to sell a product without that celebrity’s consent, to create the impression of some association with that celebrity; in those cases, the advertisers were the creators of the allegedly problematic content. However, as the Vergara case illustrates, in this modern social media landscape of re-tweeting and re-posting, brand owners may still face liability even if they are not the creators of the content, and celebrities are keenly aware of the value of a paid social media endorsement. Merely reposting a celebrity’s Instagram account (or a paparazzi photo), even if well-intentioned, may open a brand owner up to a false implied endorsement claim if consent of the celebrity is not first obtained.

Under Lanham Act case law, a false implied claim is one that may be literally true but nonetheless deceives or misleads consumers by its implications. The FTC’s “Guide Concerning the Use of Endorsements and Testimonials in Advertising” defines endorsement as any advertising message “that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser.” A celebrity’s unpaid mention or use of a product in a social media post is certainly valuable to a brand owner as a “free” endorsement. And it may be tempting for brand owners to immediately re-post a celebrity’s social media account which features or seemingly approves of that brand owner’s product. But, as the Vergara case illustrates, consideration needs to first be given to the implications of re-posting the celebrity’s account, and any related captions or editorializing, so as to not create the impression of endorsement, authorization, or sponsorship by the celebrity without his or her prior consent.

Copyright © 2017, Sheppard Mullin Richter & Hampton LLP.