Operating a Facebook page or “pinning” on Pinterest may not seem like advertising, but these activities are interactions with customers that are subject to the same laws that govern more traditional forms of advertising. Many companies are making advertising law mistakes that could be prevented by following a few key principles:
- Avoid misleading statements regarding your products or services
Any statements about your products or services must be true, and not misleading. Review posts and tweets carefully, from the customer’s point of view. Advertising claims must also be substantiated (i.e. supported by evidence) particularly when they concern health, safety, or product performance or comparisons. Substantiation does not need to be included in a post, but you should have it in case an advertising claim is challenged. - Avoid concealed product endorsements by identifying relevant facts.
Identify yourself accurately, and disclose circumstances surrounding product reviews. Employees blogging or tweeting about the company’s products should accurately identify their affiliation with the company. Similarly, bloggers failing to disclose receipt of a free product in exchange for a review, or companies paying bloggers for reviews without disclosure of these facts, are engaging in unlawful deceptive advertising practices. - Follow the rules for contests and promotions.
Promotional contests are carefully regulated. Learn and follow state law as well as the provider’s rules regarding contests and promotions in social media. For each promotional contest, post and follow contest rules that comply with laws where the eligible contestants reside. Also, keep up with changes in provider’s policies. Facebook’s policies are updated frequently. - Don’t use copyrighted material, trademarks, or anyone’s name or likeness without permission.
Just because a video, photo, or other content is online does not mean that it can be re-posted. Ensure that you own the copyright in material you are posting, or have permission from the copyright owner. Don’t post customer names or likenesses unless you have their permission. Avoid using other parties’ trademarks if the use could be confusing or imply an association or affiliation that doesn’t exist. - Have a privacy policy and follow it.
Consumers provide massive amounts of personal information via social media, yet are increasingly concerned about privacy. A privacy policy is required by some states’ laws and certain website analytic services, but it can also help build customer trust. However, a privacy policy is just like a contract; a business must do what it says it will.
Jennifer Gregor, attorney with Godfrey & Kahn, S.C.
