2013 FTC Dot Com Disclosure Updates and What They Mean For Online Marketers

On March 12, 2013, the United States Federal Trade Commission (FTC) released the long-awaited Dot Com Disclosures. The Dot Com Disclosures guide provides guidance for online and mobile advertisers. Last released in 2000, the internet back then looked very different than it does today. Even now, after over a year of working on this update, some of the information seems dated because technology is changing so quickly.

As soon as the guide was released I started getting emails and contacts asking questions and seeking clarification. The amount of inaccurate information I’ve seen in the few days after their release tells me that there is a need for helpful and accurate information for business, social media professionals and bloggers when it comes to the FTC’s 2013 Dot Com Disclosures.

1. These disclosures are NOT new laws. The 2013 Dot Com Disclosures, like its predecessor, is a guidance document. The FTC staff has made these documents public to assist businesses and professionals working in the online and mobile advertising space in creating their advertising programs so they comply with the FTC rules with regard to advertising and selling online and via mobile platforms. The guidelines only address disclosures required that relate to laws the FTC enforces.

2. The FTC Act continues to prohibit “unfair or deceptive acts or practices” with regard marketing, advertising, promotional and sales practices, in general. The FTC Act is platform neutral, with the goal of consumer protection being paramount. As new technologies and methods of engaging with consumers have come about, the requirement for appropriate disclosures has continued. This document seeks to clarify what is meant by “clear and conspicuous” disclosure to consumers.

3. The FTC’s basic principles of advertising law have not changed. Advertising must still be fair, truthful and not misleading, and have evidence to support all claims. The FTC is tasked with protecting consumers, and, as such, their evaluation of advertising uses the reasonable consumer as its standard.

4. These disclosures, both the content and their placement, aren’t measured by what the company or online marketer/professional thinks makes sense. If a disclosure is necessary or required so that an advertisement or marketing message does not violate an FTC rule or other law, then the disclosure should be clear and conspicuous. The guide provides a very good discussion of this topic. Mentioned are factors such as size of text, color, distracting factors, use of graphics, repetition, location, proximity to message, as well as the primary message of the advertisement.

5. Hyperlinks may be used for disclosures, but the FTC will look at a number of factors to determine if they meet the clear and conspicuous test. The Dot Com Disclosure guide provides a comprehensive discussion on this topic on pages 10 – 13. The general conclusion is that if you are going to use a hyperlinked disclosure you should read this section to fully understand how to do it within the parameters of compliance.

6. Understand the technical limitations of the platform. The FTC is very clear that pop-up disclosures are not to be used. Due to pop-up blockers, a user or consumer may not see the required disclosure creating a potential liability for the marketer. In addition, be aware of the issues related to the technology that may prevent the disclosure from being seen. Not all apps, browsers or mobile platforms function in the same way. What may work on one device may not work on all. In addition, common software may prevent hover disclosures or change link functionality. If these are known (or should be known) limitations, be prepared to create alternative means of disclosure.

7. For the first time, the FTC addresses disclosure on space-constrained platforms. For most, this means Twitter. The FTC states the disclosure should be at the beginning, using “AD” or “Sponsored” so the consumer is adequately informed. The FTC notes that using an abbreviation of the word “sponsored” is likely inadequate because the consumer will not know what the abbreviation means. While most advertisements or sales pitches are teasers and will lead the consumer to a site where it is much easier to provide full and appropriate disclosure, the space-constrained message may still need a disclosure. Furthermore, the FTC recognizes that space-constrained messages may be replicated (such as a retweet). With such replication, the advertiser needs to ensure there is sufficient space so the disclosure is maintained.

 

8. Since the FTC is primarily tasked with protecting consumers, it makes sense that the Dot Com Disclosures address the language used for the disclosure. Consumers have different levels of understanding. Online professionals may be very proficient at the utilized technology, but the consumer may not. How you use the technology may differ from how the consumer uses it, making it incumbent on the marketer and other online professions creating the message to craft a disclosure appropriate for the average consumer.

9. The Dot Com Disclosures do not change any of the requirements with regard to testimonials and endorsements used in advertising. When companies use third parties to share their message, through testimonials or endorsements, the FTC’s Endorsement Guides offer helpful information. The Dot Com Disclosures not only addresses additional situations with regard to marketing, sales and advertising in the mobile and online space, but it acts to clarify they types of disclosures that are required when the internet or mobile platforms are used. The disclosure requirement for bloggers, spokespeople, brand ambassadors, and other third-parties (like celebrities) remain the same.

While this update to the Dot Com Disclosures now incorporates technology that did not exit when the prior version was created, we don’t see many radical changes. These disclosures relate to online and mobile-technology communication with consumers that could lead to a buying decision. And while much of the focus is on the consumer protection aspect of these new Dot Com Disclosures, what is equally important is that compliance is also a tool which allows marketers and sellers to compete in a marketplace free of deception or unfair trade practices.

Who should use the Dot Com Disclosures? This guide should be used by brands, entrepreneurs, small businesses, PR companies, marketing strategists, online professionals, social media consultants and strategists as well as bloggers and others who use social media in conjunction with promoting a product or service to the consuming public. Non-compliance with this new update won’t bring a fine or a reprimand from the FTC. However, since these disclosures are a guide as to how the FTC will determine and evaluate unfair and deceptive trade practices which violate underlying laws it would not be wise to disregard them. The FTC is attempting to offer insight and transparency into what they look at in determining what consumer protection matters they will pursue. While it may not be exacting or crystal clear, it is an important tool to consider when making consumer focused marketing, advertising and sales decisions.

What are your thoughts about the 2013 FTC Dot Com Disclosures? Are you confused about what you have to do? Has the FTC gone too far? Are you mad because you disclose and others don’t?

For other articles about the legal implications of being online, check out my legal blog.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information only and do not create an attorney/client relationship. 

Images taken from FTC Dot Com Disclosure Guide

Sara

5 Legal Considerations For Your Pin It To Win It Promotion

Pin it to Win it

Pinterest is one of the most popular social networking platforms, especially for people who are visual. Pinterest is currently the fastest growing social network, and if you’re on it you know why. If you’re not on Pinterest, you may not understand all the hype. Suffice it to say that Pinterest’s digital “pin boards” have given millions a place to house all the things that were once relegated to bookmarks.

More and more, though, I’m seeing “Pin It To Win It” (PITWI) type promotions. Now that Pinterest has business accounts, it’s easier for a business to create a promotion that includes Pinterest. Pinterest has even created some promotion guidelines to give insight as to how and how not to use the platform.

The days of the wild west use of Pinterest are gone. While many have ignored the FTC Disclosure requirements and the fact that there really are laws about giveaways, that should change now. Pinterest, while not so clear in their new guidelines, has mentioned that it is up to the business to apprise themselves of laws or administrative rules that may also apply to their promotion. Unfortunately, I don’t see small businesses doing this. Even large companies, with access to lawyers, aren’t taking the time to have legal check over their PITWI promotions. What’s worse is that many companies hire outside agencies to run these promotions and these outside PR, social media and digital agencies aren’t seeking legal input either. Instead, they might be relying on what some sales exec at the company providing their promotion interface (be it an app, an embed or widget) give them info on what to do or “social media experts” who know just enough to be dangerous.

Problem is, there are laws that govern sweepstakes and contests. And, the FTC has been very clear that there must be disclosure if there is a material relationship between the parties. Unfortunately, the laws relating to sweepstakes and contests are lagging the technology and the FTC is understaffed and can’t monitor the tens of millions of online communications daily that are subject to disclosure.

To help you, your clients or your business, I’d like to share with you 5 things that may cause your Pin It To Win It promotion to run afoul of existing laws or disclosure rules. Of course, you should also be in compliance with all the Pinterest Promotion Guidelines as well.

1. Compensation – this is one of the huge grey areas in current sweepstakes law. In the past it was easy to define compensation because the only way the company could be compensation was with purchase. Now, though, the value of engagement is one of the main reasons businesses do these types of promotions. With a sweepstakes you often see the phrase “no purchase necessary”. This is so that there is a way to enter without providing compensation to the sponsor. With a PITWI promotion, there is almost always some value conferred to the sponsor. In the world of Pinterest, a pin or repin is virtual currency. Every PITWI sweepstakes should have a method of “free” entry that does not require the entrant to pin, repin, like or somehow provide this virtual currency to the sponsor. Because contests are a “game of skill”, the legal guidelines are a bit different than those of sweepstakes and can require voting mechanism or other interaction between the business, the contestant and the public.

2. Method of Entry – courts are very settled that an entrant to a sweepstakes should be required to do as minimal as possible for their “free” entry. There has not been a current case addressing what this means in the world of the internet. However, taking the current law, cases and commentaries, a business should not require too much of a person to gain an entry into the sweepstakes. Having an entrant create an elaborate board, make multiple pins/repins/like, or click around like they’re on a scavenger hunt could be seen as requiring too much effort on the part of the entrant for the entry.

3. FTC Disclosure – The FTC requires clear and conspicuous disclosure if there is a connection between the endorser and the seller of the product or service. By requiring an entrant to create a board or pin or repin something to one of their existing boards as an entry to win a prize, it could be argued there is a connection between the endorser (entrant) and the seller of the product or service (business). You have to ask yourself, “would this person be pinning, repinning, liking, or creating boards unless they could potentially win something?”. If the sole reason for doing those actions is gain entry, should there be disclosure? The FTC has not spoken about this specifically, however, I believe it’s only a matter of time before we hear about the FTC investigating this type of promotion. You may ask how someone is supposed to disclose when it’s just a click. Or how are they supposed to disclose. These are questions that don’t really have an exact answer, which is why these PITWI promotion can create a liability that the business did not contemplate.

4. Copyright  – one of the issues faced with promotions involving photographs and images is copyright and the potential for infringement. While Pinterest TOS do speak to the fact that one should only pin images for which they own the copyright, it is well established that is not always the case. Copyright ownership is a significant concern when using Pinterest. By asking an entrant to pin an image owned by the business, there may be little or no concern with the copyright issue. However, if the entrant must pin their own image or pin another image found on Pinterest the business must now be concerned with the copyright issue. Furthermore, if the business has pinned images to their own board, for which they do not own the copyright, the continuous infringement issue could create significant liability. Copyright should be of special concern when the promotion is a contest and there may be voting on images pinned or repinned.

5. Location of Entrant – sweepstakes and contest laws are specific to each country. Pinterest is a global platform that does not provide any easy method of determining location. And with prizes that may be capable of fulfillment via an email, there are concerns that laws of the country in which the entrant is a legal resident are being overlooked. A business may face significant liability for running a promotion that is open to residents of countries where the business has not ensured the promotion is legally compliant.

Complying with the laws, administrative rules, and Pinterest Business Guidelines are essential for a long term social media strategy. Sure, it’s easy to look the other way because it seems like everyone else is. But the reality is that legal compliance is an important part of every corporate strategy and shouldn’t be an afterthought.

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series. This post is was not sponsored, reviewed or edited by Pinterest. I am not affiliated with Pinterest and use of the Pinterest logo does not imply endorsement. 

Sara

Fotolia Stock Photo Service Review

Photo Credit: Sample Image from Fotolia

You know what a stickler I am about the proper use of photos on blogs and websites. As a lawyer who has worked with clients to protect their images and use others’ images properly, I was very pleased when Fotolia contacted me to check out their stock photo service. I was provided with complimentary access for a month. You may have even noticed that for the last month the photos I’ve used have been a little different.

Fotolia offers exceptional quality images of just about anything. With nearly fifteen million images and HD videos available, finding just the right image for whatever you’re doing is easy. My problem was narrowing down the options.

As a royalty-free stock photo site, you just buy the image in the size you want for the purpose you need and you’re good to go. You can edit the image or create a derivative work and still be within your rights so long as you buy the correct type of image.

Fotolia charges you based on the size of the image. For the average blogger you’re probably looking at about $1-$3 per image. That may seem high, but for the peace of mind that you’re not risking your site being taken down it may be well worth it. For designers, the prices really can’t be beat. And for consultants and companies, the quality and cost is exceptional. With sizes ranging from 400×300 to over 15mp, there are photos for almost anything you would create.

When I was using the stock images, I credited each photo. The terms of Fotolia do not require attribution. I just felt it was a way to let you know where I got my images so I can be up front about the source.

If you’re looking for high quality stock images, look no further. I often use public domain or creative commons images, neither of which offer the versatility of stock photos. Fotolia has images for any type of post you may write, promotion you may be doing or design you are creating.

Check out Fotolia today. It’s free to join, you just pay for the images you want.

Disclosure:  Fotolia provided me with a one-month complimentary subscription to facilitate my review. I received no monetary compensation. I am disclosing this in accordance with the Federal Trade Commission’s 16 CFR, Part 255: “Guides Concerning the Use of Endorsements and Testimonials in Advertising.

Sara

Blog Law: Public Disclosure of Private Facts

Tommroch – Fotolia.com

 

On a weekly basis I find misdirected emails in my inbox. With a name as common as Sara, it’s been happening to me for years. And now with blogging, there are so many with the same name it’s easy to end up with an email not intended for you.

Have you ever received an email with one of those legal-like disclosures on it? If you’ve ever worked with a lawyer or someone in a larger company you likely have. It goes out on every email. And likely is ignored most of the time. For the most part, they’re worthless. Yes, this lawyer said something legalish was worthless. It’s just boilerplate slapped on the end of every single email regardless of whether it is relevant or not.

So if you received an email, DM, text, or skype message not intended for you, what did you do? Of course you read it. Because that’s how you realized you really weren’t the right person. And now that you’ve read it, what do you do? I always reply letting them know I received the email but they were likely intending it for someone else. To which they almost always are glad that it was me who received it because I’m known to maintain confidentiality regardless of whether or not I’m legally required.

But what about you? What would you do? What if it included someone else’s stats or how much they were going to get paid for a project? Or there was information about a medical situation or something about their child or spouse? Would you use it for your own purposes? Can you? Legally?

This is often where the legal part comes in. Once you read it you can’t unread it. So you  know the information. And if you email back so they know their misdirected the email, then there is someone who might think you know something confidential, or at least private.

What to do? Not just legally, but morally and ethically. You may not be legally prohibited from sharing some (or all) of the information, depending on what it is. But morally or ethically should you? Often two separate concerns.

The Restatement (Second) of Torts §652D provides: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

In plain English this mean that if you publicly disclose another’s private information you may be liable for Invasion of Privacy if (a) a reasonable person would be offended if the information was publicized AND (note the AND so you need both of these) (b) the information is not a legitimate public concern. To break it down even more, there are 4 things that need to be present:

  1. Public disclosure
  2. Private facts of another person
  3. Offensive to the reasonable person
  4. Not newsworthy

Pretty much nothing you receive from another blogger, PR rep, marketing consultant, social media expert, online guru or twitter master is of a legitimate public concern, thus if you tell people about the contents of the email you could be liable for Invasion of Privacy.

What is Public Disclosure? It means telling the public. This can happen by emailing your entier address book, posting about it on Twitter, Facebook, ‘secret’ Facebook groups, Google Plus, Tumbler or the like. If you write about it on your blog, that’s definitely ‘public’. Telling a few people in your Skype group? Not likely to be public and not give rise to Invasion of Privacy.

What is ‘Offensive to the Reasonable Person’? The point here is that not everything that is disclosed, even if private, if offensive to the reasonable person and the law doesn’t want to punish someone for sharing something that would be relatively harmless. For example, if you find out someone’s birthday and share it the average person might be ticked off, but it wouldn’t really be offensive. Now if we’re talking about sharing a social security number, how much someone is getting paid or if they have a medical condition it might be offensive.

Newsworthiness? Is the information you found out newsworthy? Courts want to protect people who share information that is of a legitimate public concern. Chances are, though, the average blogger won’t be getting an email from another blogger, PR rep, marketing consultant or the like with information that is truly of public concern.

All in all,  disclosure to a few friends likely won’t meet the legal definition of Invasion of Privacy. But remember how the internet works. You’ve hear the phrase “What happens in Vegas, stays in Vegas”? Well, that’s not how it works with the internet or bloggers. What happens in the blogosphere ends up on Twitter. And Facebook. And someone else’s blog.

And, then, of course, we get to the ethical issues. While we can’t ‘unsee’ something, we can always take the high road and not use the misdirected information, as it was never intended for us anyway.

Have you ever received an email not intended for you? How did you handle it?

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

Just Because It’s Not Illegal Doesn’t Mean It’s Right

Blog Law and Ethics

Every day I get a few emails and DMs from bloggers upset that another blogger has taken something of theirs. Whether it is an idea, a design concept, something from Twitter, a hot deal, a complete post, it seems like there is a lot of taking going on. In addition, as bloggers are trying to grow their Facebook communities some are taking it upon themselves to poach from others.

For the most part, I’d say about 90% of the taking or doing unto another via some type of online medium, as it relates to blogging, is without legal consequence. Plagiarism isn’t illegal. Stealing an idea, unless covered by some type of non-disclosure, is not illegal. Designs? Depending on how much is lifted there could be issue. But generally, what I’ve been alerted to hasn’t risen to the point of copyright or trademark infringement.

I’ve discussed the issue of copying blog posts by another blogger. And depending on the type of post there may be a reason to scream foul and mount the troops for a take down. But when the post would not rise to the level of being subject to copyright, because it’s a list or may not be considered sufficiently original, copying and giving a ‘shout out’ or link back doesn’t make the taking right.

Years ago I studied Corporate and Business ethics under the foremost leading academic authority on the subject, Professor Marianne Jennings. It was in her class, as well as working with her to edit one of her textbooks, that I solidified my interest in the field of Ethics, Corporate Compliance and Corporate Responsibility. And over the years I have continued to stay current in these areas, especially as the internet and new media platforms emerged and have grown.

The law, for most is very black and white. They don’t break the law. Or at least not enough to get caught. Especially when we’re talking about things like copyright and trademark laws. I’m often told they’re not real laws because on really gets hurt. Well, not like crimes that have become the basis of an entire genre of television drama.

And, since most bloggers aren’t really violating some state or federal law they turn a blind eye to the consequences of their actions. Because, after all it’s not illegal per se. And we all know ethics is a big muddled blob of wishy-washy-ness.

Ethical standards of vary dramatically from one person to the next. We may even vary our own ethical standards depending on the exact situation. It is this inconsistency and the judgement we can heap upon others that makes what some bloggers do even more upsetting.

Some of the most ironic circumstances can present themselves. I’ve seen websites that have very forceful ‘All Rights Reserved. Don’t Copy My Stuff’ type of warnings. Yet the blog has wholesale cut and pasted another’s work. Oh, the irony. And the lack of common sense.

But it goes on many, many times a day. Cut, paste, linkback. Cut, paste, ‘shout out’. And some people are just naive and don’t realize that’s not done. While others just don’t give a darn and will lash out at you for daring to call them on their unethical behavior.

The golden rule seems to have been tossed to the side. Do unto others as you would have done unto you. Plain, simple and straightforward. But for some, it’s disregarded. As if they are somehow special. Well, let me say this – they’re not. And you shouldn’t treat them like they are.

Ethics is a funny thing. There is such a broad spectrum of what is and isn’t ethical. While there is some wiggle room with laws, it seems like ethics is more like a wide open space with plenty of room to stretch. Ethics isn’t an either/or proposition. Doing what’s right isn’t always an easy choice. And my idea of what is right may not be yours. And vice versa.

However, with blogging, as with many other businesses you can easily find ways to justify every choice. Right or wrong, who is to judge you?, you ask. Besides the fact that there are what many consider to be ‘best practices’, ignoring them comes with some pretty harsh consequences. If you’re willing to deal with the fall out of your choices, that’s fine. But understand that there are consequences. And there’s not much worse than a ticked off popular or powerful blogger.

By practicing basic playground rules, blogging could be a much more beautiful landscape:

  1. Be nice
  2. Ask before taking
  3. Say thank you when someone does something nice for you
  4. Share if you have enough
  5. Don’t grab
  6. Follow the rules
  7. If you don’t know the rules, ask someone
  8. Don’t kick sand at someone because you don’t get your way
  9. Don’t be a bully
  10. Welcome new people

I’d love to hear your thoughts. What are your biggest concerns when it comes to blogging and ethics?

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

Defamation – When Online Statements and Free Speech Collide

Words are Weapon image (c) http://www.photos8.com/

Remember when you were a kid and your mom or dad told you “If you can’t say something nice, don’t say anything at all.”? And then you rolled your eyes (with your head turned so they couldn’t see you) and under your breath called your brother a jerk? OK, maybe it was just me. But, in a hypothetical sense you know what I’m talking about, right?

As we grew up we learned about constructive criticism, sharing our opinion even when it was against the grain, providing honest input and playing devil’s advocate. We figured out (well, most of us) that saying mean things about other people, whether or not they were true, often created more problems. And sometimes we were the one having to deal with being called things that we didn’t like.

In the online world, it’s not just bloggers that are potential targets for the words they write. With Facebook, Twitter, location-based apps and online communities, anything your write online could be the basis of someone’s wrath. No longer is it just websites focusing on celebrity gossip that are catching the discerning eye.

And as much as we think that what we say online is ‘Free Speech’, most of it is not protected by the First Amendment. The First Amendment only protect individuals against the US Government trying to ‘oppress’ your freedom. Bloggers, as well as people on Twitter have been sued by individuals and businesses for the words they’ve put out in the internets.

Generally speaking, defamation is a false statement about someone that causes them harm. It is not limited to live people and can apply to corporations and their products or services as well. Defamation of the products or services of a business or company has its own special name, trade libel.

Defamation has two categories: Slander and Libel. Slander is defamation in a non-fixed medium. The easiest way to remember slander is that it’s spoken and both begin with an ‘S’. Libel is defamation in a fixed medium. Libel is written, whether in traditional magazines or newspapers or in online publications.

What is defamation?

Defamation is the publication to one other than the person defamed of a false statement of fact that is understood as being of or about the person and tending to harm the reputation of the other person. If the targeted person is a public figure (a legally defined word) they must prove actual malice by the statement maker.

But it’s the truth!

Just as my brother used to tell my mom that’s it’s OK for him to call me ugly because it’s the truth, truth is one of the most significant defenses to defamation. Keep in mind, though, that it may be expensive, time consuming and difficult to prove something is, in fact, the truth.

Not identifying the person by name

Just because you don’t name the person by name doesn’t mean they can’t be identified. If you provide enough information about the defamed person it’s easy for enough people to identify them. For example, referring to someone on your Facebook as ‘my neighbor’ may sufficiently identify them. On a blog, if you can identify a person sufficiently so that other know who you’re talking about, maybe not even naming them on your blog but linking to their blog, twitter or even a flickr image.

I was just stating my opinion

As the requirements state, it must be a false statement of fact. In context, if the statement can be determined to be your opinion then it can’t be defamation. For most people, in the online world we often preface or follow our opinion with a variety of acronyms such as IMO (in my opinion), IMHO (in my humble opinion) or even FWIW (for what it’s worth). However, just by saying it’s an opinion doesn’t mean it is.

Who is a public figure?

The law treats people in the public eye differently. If the one being defamed is a public figure they must prove that the one saying has done so with actual malice. Actual malice means that there is knowledge of the falsity  or reckless disregard for the truth. It is a very high threshold. And it is set very high because courts want people to engage in dialogue without constant fear of repercussions. A public figure is a legal term used to describe a person who has a continuous and powerful influence on a public matter.

People often mix up ‘public figure’ with celebrity. A celebrity, or even a very popular blogger, may be a public figure in the general sense in that they are very public about their goings on. However, in the legal sense they may not be a public figure. It is very fact specific. And there are many instance where very private people have been thrust into the public limelight and have become public figures, for example the pilot who landed the plane in the Hudson a few years ago.

Is there insurance available to protect me or my business?

There are a growing number of insurance companies providing media liability coverage for online libel claims. For the average blog the premium is too expensive. However, if you think you may need this type of insurance the Citizen Media Law Project has information on obtaining media liability insurance.

It is also possible that homeowners or an umbrella liability insurance will provide coverage for media liability. Check with your insurance agent if you think you might need to rely on that coverage. In many instance it will exclude any type of business liability and if you’re a blogger that is likely to mean it won’t cover what you post on your blog or blog related online media outlets.

Conclusion

Every day millions of people say negative things about other people. Only a small fraction of those statements would rise to the level of either slander or libel. I’m sure you’ve read something within the last 48 hours that made  you stop and think that maybe the writer shouldn’t have said that.

But just because it’s not at the level of defamation doesn’t mean it’s not hurtful. Nonetheless, knowing that you have a large umbrella of protection is what keeps most of us creating content. It’s not to say that bullying is OK or that being rude and obnoxious is acceptable. However, to know that you can write openly will continue to encourage people to share and push boundaries.

For blogger, especially, knowing that your honest opinion in a product review would be a defense is significant. To know that you can call someone out for foolish behavior is important. And, in general, to know that our right to rant, rave and complain is afforded great protection will keep the interwebz going.

It doesn’t mean someone you’ve ticked off won’t sue you. But what it does mean is that if that does happen you’re prepared and equipped to put up a fight. There are many cases of defamation based on online statements, however most end up getting dismissed. Still, I am a firm believer that sometimes it is better to say nothing at all. Because, really, I may be in the right but dealing with foolish people in court is no fun. And no matter how right you are it’s still your time and your money.

What are your thoughts about what is said online? Will you change your way of writing now that you know more about defamation?

Note: Just because it’s not defamation doesn’t mean it is not another crime (or tort) such as Cyber Bullying or Cyber Stalking.

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.



Image Credit: Sam Mugraby

Sara

Blog Law: Facebook Promotion Guidelines Updated

Facebook Promotion Guidelines

This week, on May 11, 2011, Facebook made some sweeping changes to their promotional guidelines. The Facebook promotion guidelines are much shorter, but still pack a punch. As such, I wanted to highlight the changes.  To see the prior iteration of the guideline, check out my Blog Law post about the prior Facebook promotion guidelines.

Things That Remain the Same

1. You Must Use A Third-Party Application. The rule is now plain and simple that promotions on Facebook must be administered within Apps on Facebook.com, either on a Canvas Page or an app on a Page Tab.

2. You must not suggest Facebook is connected with your promotion

3. You must not ask people to interact on your Facebook page to vote or qualify

  • You must not use Facebook features or functionality as a promotion’s registration or entry mechanism. (New Term #3) For example, the act of liking a Page or checking in to a Place cannot automatically register or enter a promotion participant. This means you can’t say that when you reach XX ‘Likes’ you’ll give 5 people something cool
  • You must not condition registration or entry upon the user taking any action using any Facebook features or functionality other than liking a Page, checking in to a Place, or connecting to your app.  (New Term #4) For example, you must not condition registration or entry upon the user liking a Wall post, or commenting or uploading a photo on a Wall.
  • You must not use Facebook features or functionality, such as the Like button, as a voting mechanism for a promotion. (New Term #5)

What this means for blogger & brand promotions?: If clicking ‘Like’ is an entry – and it would need to be an alternative means of entry due to Giveaway Laws – then the entrant must then take an additional step to tell you they clicked ‘Like’. If using a 3rd party app within Facebook, this step is taken care of through the subsequent entry process. If not using a 3rd party app on Facebook then the entrant must go back to your blog or website and somehow tell you they did this. Simply clicking ‘Like’ as a means of entry into a promotion would be a violation of the Promotion Guidelines.

4. You must not use Facebook for notifying winners. This means no posting to walls, private messages, chat or anything that uses Facebook to communicate with the winner.

5. You must not use Facebook’s intellectual property, except to comply with the rules. This means you can say the word Facebook when you disclaim it is no involved with your promotion but you can’t use their trademark, trade name, copyright or other intellectual property to promote any aspect of your promotion.

6. You still have to comply with all Federal, State and Local laws regarding contests, giveaways, promotions, sweepstakes and the like.

Things That Changed

1. No longer will Facebook prohibit any goods or services from being offered in a promotion. In the past, they excluded things like dairy, alcohol, tobacco, etc. This mean that you’re likely to see more promotions for things you may not be used to seeing. In addition, it means you’re pretty much free to offer whatever you want as your prize as long as it’s not prohibited by law.

2. No longer are Facebook promotions limited to people age 18 and over. While you may make that limitation, Facebook is essentially opening all promotions to anyone who can legitimately sign up for a Facebook account. This mean, children age 13 – 17 are now potentially able to enter promotions. Of course, if you are going to open a promotion to anyone under the age of 18, I highly suggest learning about the specific laws regarding promotions to minors.

3. Facebook no longer has exclusions based on location. Essentially, you can now offer promotions worldwide if you’re willing to comply with whatever law govern such promotions. Just make sure your giveaway is legal!

4. The new Facebook promotion guidelines will allow for sweepstakes promotions as well as contests in which the winner is determined on the basis of skill. This is a slight departure from the prior rules which had several restrictions. Now, it’s basically up to you to comply with any laws.

5. All promotions MUST include the following:

a. A complete release of Facebook by each entrant or participant.
b. Acknowledgment that the promotion is in no way sponsored, endorsed or administered by, or associated with, Facebook. (Note: this term isn’t actually new)
c. Disclosure that the participant is providing information to [disclose recipient(s) of information] and not to Facebook.

 

Overall, I think these promotion guidelines are much better and easier to comply with. Rather than taking it upon themselves to police promotions, it appears that Facebook is shifting liability and responsibility to the promoter. That doesn’t mean Facebook will all of a sudden slack off in monitoring compliance. Failure to comply with these new guidelines will result in your account being suspended, just as it had before.

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

Blog Law – Is Your Giveaway Legal?

Rule for Online Giveaways

More and more I’m seeing giveaways that may not be fully compliant with federal or state laws governing giveaways. Whether online or off, there are a host of laws that every contest holder must follow or risk significant fines or, in some states, criminal prosecution.

Sweepstakes and contests have been used by marketers for decades to create awareness for their product or service. Bloggers are getting into the promotion business, not only for themselves but also for brands of all sizes. While brands often have legal counsel to advise them on the intricacies of running a contest that complies with all laws, that information is not usually passed down to bloggers. As such, bloggers are left to their own accord. This has resulted in a number of different tactics being used. Unfortunately, many bloggers are not compliant with the various laws exposing them to potential liability.

What are Sweepstakes, Contests and Lotteries?

Sweepstakes are prize giveaways where the winners are chosen by the luck of the draw. Prizes can be almost anything a blogger can think of from handmade cards to an all expenses-paid trip.

Contests choose a winner based on some merit. The winner is chosen based on some criteria such as best photo, funniest parenting tip, etc.

A Lottery is a prize drawing where people must pay money to buy a chance to win. Lotteries are highly regulated and should not be run without consulting with legal counsel.

While many bloggers use the term contest, unless there is some criteria for choosing the winner their giveaway is most likely a sweepstakes. In addition, I’ve seen that most bloggers will use some form of random selection process to choose the winner of their giveaway item, thus making their giveaway a sweepstakes and not, in fact, a contest.

What laws govern?

In the United States, sweepstakes promotions are regulated by numerous federal and state laws as well as overseen by various federal agencies. Federal agencies with jurisdiction to regulate sweepstakes promotions include the Federal Trade Commission (“FTC”), the Federal Communications Commission (“FCC”), the United States Postal Service (“USPS”), and the United States Department of Justice (“DOJ”). Sweepstakes promotions may also be regulated by state laws. And let’s not forget that sweepstakes promotions may be the subject of a private lawsuit brought directly by a consumer with a beef as to how the promotion was handled.

If a sweepstakes promotion allows nationwide participation, the promotion must comply not only with federal regulations, but also the regulations of each state. For example, in California, the Business and Professions Code governs the promotion of the sweepstakes while the Penal Code (criminal law) sets forth the definition of a lottery.  In New York, if the value of the prize offered is more than $5,000.00 the law requires that consumer sweepstakes be registered and bonded 30 days before the commencement of the sweepstakes. The state of Florida also has bonding requirements for sweepstakes.

Could my giveaway be an Illegal Lottery?

A lottery has three things: Prize, Chance and Consideration.

Prize – without a prize your giveaway would be lame and no one would enter it, so there’s always a prize!

Chance – pure luck! You could get around this by having some skill requirement but that is often difficult to manage or greatly limits the number of people who will enter.

Consideration – something of value. Often it’s money, but it doesn’t have to be. Depending on what you require entrants to do, you could be pushing the envelope on this element. Each state may have their own particular definition making it very difficult to manage.

When it comes to bloggers, there are few things more valuable than followers. As such, requiring someone to ‘like’ you or ‘follow you’ could be construed as consideration. Even more important, asking an entrant to go to a third-party site, navigate to find a product or services and then report back to your site is even more likely to be deemed consideration and thus placing your giveaway into the classification of illegal lottery. Time is exceedingly valuable!

While online promotions seem to be everywhere, the laws pertaining to this realm have not been as quick to develop as the internt itself. As such, even by providing an easy and simple means of entering but providing additional entries conditioned upon doing certain things may result in your giveaway not complying with necessary laws.

Who can enter my giveaway?

You will often see that a contest or sweepstakes is only open to those 18 years of age or older. This is because the laws relating to minors adds a layer of complexity that many are not willing to manage.

Because blogs often have readers from all over the world, can you just let anyone enter? The short answer is yes, if you are willing to comply with the laws of every jurisdiction (including those of foreign countries). In Canada, for example, the winner can not be chosen by luck, but rather some element of skill must be involved. And if you do wish to open your giveaway to residents of Canada, you must go one step further and either exclude Quebec or add in the various additional rules that province requires.

While bloggers definitely don’t want to leave their Canadian readers out in the cold, it’s a harsh reality of administering a giveaway through a sweepstakes that residents of Canada must be excluded. It’s the same reason readers under the age of 18 are often excluded. It becomes cumbersome to administer the promotion if more laws must be followed.

Checklist for your giveaway:

If your giveaway winner will be chosen at random you are hosting a sweepstakes and thus you should comply with the laws regarding sweepstakes.

1. Identify the prize – provide as much detail as necessary to both identify it and make it attractive to your readers

2. Who can enter – detail who is allowed to enter, as well as those excluded

3. Duration – clearly set out when the giveaway (sweepstakes) will begin and end, and follow through

4. How to enter – let the reader know what they need to do to enter your sweepstakes, keeping in mind that element of consideration that could vault your sweepstakes into illegal lottery territory. Ultimately, the best bet is to keep entry as simple as possible.

5. How Winner Is Chosen – describe how you will choose your winner, especially since you are likely choosing randomly

6. Technical Issues – since we all know there could be technical problems, let people know how they will be handled. For example, will you delete duplicate entries? If your site goes down, what will you do?

Group of Bloggers Come Together For Giveaways

Recently I’ve noticed that a group of bloggers will get together and offer several prizes. This is a new phenomenon that presents unique concerns. While it is uncharted territory, the legal ramifications can be far-reaching. Consideration needs to be given to the total value of the prizes given away because it could require either filing for and obtaining bonds in states that require them, or declaring their promotion void in those states. Because the giveaway is often billed as a cross-blog promotion and involving many prizes, it would be advisable for the bloggers involved to ensure they are compliant to avoid potential civil and/or criminal violations.

Tax Implications

While this will not apply to all, bloggers need to be aware that any giveaway with a value of $600 or more must be reported to the Internal Revenue Service. Knowing that, the blogger should not only make entrants aware of the value of the prize but also that they will need to complete a prize validation as well as are responsible for any taxes that may result from winning.

Conclusion

In summary, running a legally compliant giveaway involves a lot more than throwing up a post. Bloggers need to adhere to a variety of federal and state laws, as well as ensure compliance with federal agencies if that is the case. And while blogger do not want to exclude any of their readers, sometimes it is necessary. Finally, if your giveaway is over $5,000.00 there will be other state laws and bonding requirements that will need to be met.

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

Contract Law Basics Part 2

Contract Law Basics

Now that you know what the basics of Contract Law are, I’d like to move on to the main issues of contract negotiation. Most contracts, whether from the brand directly or via their PR agency, will have been crafted by a team of lawyers and heavily stacked in favor of the brand. It’s just how it works. Most lawyers aren’t in the business of making contracts fair and balanced. It’s all about protecting the client.

I take a bit of a different approach and don’t believe that contracts have to be imbalanced or onerous to one party. One-sided contracts don’t do much good because it immediately puts the other party on the defensive. However, if you know that the contract will be heavily favored toward the brand (other party) you’ll be better able to read through it without feeling taken advantage.

Contracts, or Agreements, are usually negotiated documents. There are many that are not, such as website Terms of Service, Ad Network agreements, sponsored posts via a third-party ‘mom collective’. But we’re talking about contracts with brands to engage you, the blogger, to do work for them.

If you’ve been talking with a brand or PR rep and are entering into a relationship with them, the agreement or contract you receive is something that should be read fully, understood and, if necessary, negotiated to include terms you need or want as well as spell out more clearly those terms that are ambiguous.

Some aspects of the contract will non-negotiable, but that doesn’t mean you need to forget about them. For example:

1. Jurisdiction – in the case of a dispute, this is the location the dispute will be settled. It will often be in the state of incorporation or where the corporate headquarters are located. No matter where you live, work, or are qualified as a business, very few brands or PR agencies will allow this term to be changed. It’s not in their best interest and creates logistical issues for them in case of dispute. Just be aware of this so if something does go wrong you know where you’re headed.

2. Notice – there will almost always (I say almost because sometimes are they inadvertently left out) be a Notice term. This sets out where and to whom notice is given in case of changes or disputes. The key here to to make sure your information is correct so that they can reach you at any point in time.

3. Assignment – usually a clause is included that prohibits the assignment of the agreement. Often it will say that the brand may assign it without notice or approval but that you may not assign it without their approval. This makes sense from a business perspective as the brand enters into thousands of agreements and does not want to obtain permission prior to assigning an agreement for business purposes such as merger or change of structure. However, because the brand is contracting with you or your business specifically they don’t want you changing places with someone else.

The terms and conditions you will want to focus on are those that directly impact your relationship, scope of work and compensation. These include:

1. Non Compete – If an agreement includes a non-compete provision, read it over carefully to determine (a) length of time, (b) scope as well as (c) location. A world-wide brand may want to limit your ability to work with a competitor on a global scale. Does this make sense if you’re only focused on the US? Is it appropriate to prohibit your working with a competitor for 12-months when your agreement is only for a 3-month contract?

2. Scope – Define as clearly as possible what work you are to do. Is it a set number of posts? Are there time or word-length requirements? Who provides the images? Will they pay for shipping giveaways? If you need to travel, how is that paid and what is covered? When it says ‘electronic’ does it cover all new aspects of electronic media? Or is the term vague?

3. Compensation – Most people know that the actual amount you’re being paid is negotiable. However, they often overlook the terms of payment. Some companies pay 30-60 days after receiving the invoice. Is that acceptable to you? If your compensation includes both cash and goods, be clear as to the value of those goods and how it will be reported to you for tax purposes.

4. Intellectual Property – this is a big one for bloggers. Who owns it? And what is ‘it’? Read this provision carefully as you will want to know exactly what you may be giving up. In addition, you will often be providing assurance and guarantee that you will not provide anything for which there is a potential dispute over ownership. Thus, if you use images on your posts or site that may be copyrighted for which you do not own or have a license, permission or fair use argument for then there could be a potential for breach. In addition, you will want to know what you are giving up to the brand. Will they be able to use your post on their site without linking to you or without reference to you by name or site? The other concern you should evaluate is whether this is, in fact, a Work for Hire. Work for Hire is a technical legal term related to Copyright and certain terms and conditions must be met.

5. Dispute Resolution – If there is a dispute that escalates beyond the ability to resolve through discussions, you or the brand may need to take a more formal route to resolve the problem. Many companies are now moving to Alternative Dispute Resolution (ADR) programs such as arbitration or mediation rather than using the court system. There are pros and cons to each type of resolution system. Many litigators will tell you that litigation is cheaper and more reliable than ADR. Mediators and arbitrators will say ADR is the way to go.

Some lawyers will say avoid arbitration clauses at all cost. This is fine if you never want to work with the other party again. If you don’t mind standing on scorched earth at the end and having no possible means of maintaining a relationship then litigate away. Some lawyers believe that because the more powerful party can stack the arbitration clause in their favor that there is an inherent lack of fairness or that it could be cost prohibitive to the party that can’t make any changes.

In most situations, this term will NOT be part of any negotiations. The more significant the agreement and relationship the more likely you can negotiate this term. The reason I bring it up here is that if you can negotiate it then you’re likely working with a lawyer who can advise you what is in YOUR best interest. If you are NOT able to negotiate this term, at least know what it means to you should the relationship go bad.

6. Parties – Who are the people/businesses who will be liable on this agreement? I include this although it seems like a no-brainer. If you have been working with a brand or PR agency they likely know you as a person who has a blog. They many not realize you have formed a legal business entity. When entering into an agreement, be sure that the agreement is between the other party and your business if you have one. Indicate on the agreement the name of the business, the address and the state where it was formed. Indicate the type of business as well. It may not mean much at first, but it can be used as proof to the IRS as well as in case of dispute that you are not sued personally. If they want both you personally AND the business on the agreement, understand what that means for you legally.

Conclusion

While most every term of a contract or agreement is negotiable, it’s not often realistic to negotiate with a brand on what may seem to the brand to be routine relationships. If a brand or agency wants to work with you, coming back to them with a marked up agreement that looks like you’ve had a run-in with an axe-murderer will not set the tone for a friendly relationship. Remember, they need to go back to managers, supervisors or a legal team with your changes.

From personal experience, I was more willing to make changes to an agreement when the changes were presented in a clear and concise manner. Telling me why it’s important for you to have the changes helps the other side know what your goal is. Remember, you may actually be trying to negotiate with people who know nothing about you. You need to give them a reason to make the changes. Especially when it’s a large company.

Also, rather than marking up every single term you don’t agree with consider why the term or condition is there. Keep in mind that many of these agreements were drafted months or years ago and may not be updated with references to new technology. Also, understand that they’re not trying to pull one over on you. As a large corporation they tend to focus on standardization within the legal department. They do not devote resources to review ever single agreement, often leaving it to brand personnel to finalize agreements. Their authority to modify and change agreements may be limited because they are not lawyers and they, themselves, may not fully understand the agreement either.

All that being said, when asking for changes be clear about what changes you want. Know which ones you will be ok with if they can’t change it. And if it is very important that something be changed, do not be afraid to ask for it. Often explaining why you need the change will allow them to see a different perspective.

Finally, when presenting your changes submit them all at once. Dont’ piecemeal your requests. It’s very frustrating to have to keep looking over the same agreement and you’re less likely to have success getting your terms and conditions incorporated.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

Blog Law: Photo Use and Etiquette

Rules for Online Photo Use

Most SEO experts suggest using at least one photo in every blog post. From an aesthetic perspective it’s a good idea, especially when the photo has something to do with the content. Photos and images are especially important for food blogs. And, of course, there is that “A picture is worth a thousand words” adage.

I always thought everyone knew that copying and pasting photos found on the internet was a definite no-no given that nearly every image created in the last 30 years is still protected by copyright, whether here in the US or from another country extending such rights. Boy was I wrong! When I spoke at Blissdom, one of the questions I asked of the audience was how many people have had a photo stolen. Nearly every hand in the room went up. WOW! We’re talking about fifty-some people (probably more). I went on to ask how many people have used Google Images to find photos. Quite a few hands went up.

Today I want to discuss using photos found online. I will not talk about using images from a brand’s website. The focus is on those images and photos found by searching the internet and coming up with page after page of images that may be suitable for your needs.

What is Copyright? Copyright is protection created by the US Constitution that give virtually every author the exclusive right to use or reproduce their work. This is a federal law and therefore uniform across all states. And, as the US Government has signed on to a variety of international copyright agreements protection is essentially world-wide.

US Copyright is a protection that applies to original works of authorship fixed in a tangible medium. “Original” means that an author produced a work by his or her own intellectual effort instead of copying or modifying it from an existing work. “Fixed in a tangible medium” means that the work is able to be perceived, reproduced, or otherwise communicated. Your blog is the necessary ‘tangible medium’. (17 USC 102)

Nearly every photo taken gives the author (the one who takes the photo) a protectable right to prevent others from using or reproducing that image. Of course there are exceptions, but generally, the photographer owns the copyright. This is actually very important to know should you ever hand your camera to someone else to take a photo. That’s a completely different discussion, but don’t get offended if you ask your photographer friend to use her camera and she says no.

How do I get a Copyright? Copyright is automatic upon creation of an original work of authorship. With regard to photography, with few exceptions, every image is accepted to be covered by copyright upon putting the photo onto a hard drive or similar device.

Continue reading “Blog Law: Photo Use and Etiquette”

Sara