Succeeding “By the Numbers” in Social Media and Content Marketing – Without Getting Investigated or Sued

Headshot 3On the heels of speaking to marketers at Content Marketing World 2016 in Cleveland and AAF Akron last month, it’s clear to me that when it comes to the effectiveness of using social media and content marketing tactics to achieve business goals, it’s a numbers game. Metrics, analytics, ROI – marketers are focused on the numbers that will tell them what works, how well it works, and how long it takes for it to work.

As a marketing lawyer who deals with the legal implications of social media and content marketing frequently, I think looking at the numbers is helpful in other ways too. Here are a few recent numbers that interested me:

54 – According to a survey of hundreds of marketing influencers conducted this past summer by influence marketing firm SheSpeaks, more than fifty-four percent of influencers reported in increase in the number of requests for sponsored content in the past year alone. That’s a tremendous amount of sponsored content. And a big opportunity to miss the mark on legal compliance issues related to it.

95 – Fortunately, ninety-five percent of the influencers polled by SheSpeaks say they disclose their brand relationships. I suspect this is on the high side, but it’s a good indication that the influencers understand the bedrock legal rule in content and influence-based marketing:  transparency.

91 – Ninety-one percent of influencers responding to the SheSpeaks poll say that they’ve been asked by their brand partners to disclose their relationship. Again, I suspect this is a bit high, but it’s still a great statistic because it means marketers and influencers are communicating well about the need for relationship disclosure in content marketing. Unfortunately, not all the numbers look this sunny. For instance….

30 – According to another body of research, also released this summer by Polar (a native ad resource firm), over thirty percent of native ads – those designed specifically to look like the editorial content that surrounds them – fail to comply with the Federal Trade Commission’s disclosure requirements. That’s a lot of noncompliant ads, and a big opportunity for additional legal enforcement by the FTC and other ad industry legal watchdogs. Still, it’s not a scary a number as…..

25 – The surprising (to me, at least) percentage of marketing influencers who reported to SheSpeaks that they’ve actually been asked by their brand partners NOT TO DISCLOSE their relationships in their influence marketing.   

The U.S. Federal Trade Commission believes the ad industry can and should do a better job of complying with the principles of transparency and disclosure in social media marketing, content marketing and native advertising. The results of the recent research I just shared would seem to indicate that they’re correct. And to emphasize the point, the FTC is increasing its enforcement activity in the ad industry – an industry that has historically been given a lot of space to self-regulate without government intrusion.

The Commission is engaging in enforcement action in cases like the Lord & Taylor “One Dress, Fifty Bloggers” campaign (where fashion bloggers failed to disclose that they had received compensation – including the actual dress in question – from Lord & Taylor, and a native ad designed to look like an editorial piece was placed in Nylon magazine without disclosure that it was paid content), and like the Sony/Deutsch LA video gaming campaign (where gamers wrote rave reviews of Sony video games for a campaign – without disclosing that they were Deutsch agency employees).

So, how can you help avoid a similar fate for your next social media or content marketing campaign?

First, know the FTC’s primary rules about social media marketing – transparency and disclosure. If the brand is engaging any person or organization to promote its offerings on social media by exchanging anything of value at all, such as free merchandise for review, tickets or passes to an event, and naturally, money, there’s got to be clear disclosure of the consideration, or at least the relationship. If you need a quick refresher around the FTC’s rules related to testimonials and how to be compliant, you can find a guide here.

Second, if sponsored or promoted content is part of your strategy, know how to meet the FTC’s expectations that you identify the content as paid by both physical appearance and using appropriate content designations. Learn more about compliance with the native advertising guidelines here.

It’s not hard to stay out of legal trouble when using these tactics in your campaigns. It takes a few preventative measures like staff education (for both agency and brand teams), proactive review policies before a campaign goes live, and frequent monitoring and communication to react to errors quickly post-launch. It also helps if you work with influencers who understand and follow the rules, too.

Put these measures in place and keep the odds in your favor.

Sharon Toerek is Principal of Toerek Law, a national intellectual property and marketing law Firm based in Cleveland, Ohio, and the author of the Legal + Creative Agency Protection System, a comprehensive legal toolkit for marketing agencies.  She’s also a proud Past President of AAF Cleveland.

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