BB Summit: Social Media Law

Apparently Monday is my "post about BBSummit12" day.  I posted the opening roundtable last week, a discussion of how to take brand and blogger relations to the next level.  Today, I have Liza Berry-Kessler's session on social media law.  It was fascinating.  We could have spent the whole day on this one topic.  In fact, I want to attend a conference one day that has sessions all day long on different facets of this because it's a huge topic with so many different areas.

Below is my summary of the session, noting that we ran over in time, and not all the material Liza wished to cover was discussed.  I learned some new things - yay.  Although much of it was a refresher, it was a well-appreciated one.  We got stuck only on one topic, that of bloggers doing group giveaways for a price.  Liza wasn't familiar with those and the description wasn't super clear.  

Social Media Law

We could spend two hours on any one of these topics, so interrupt, ask questions, raise your hand.  Some parts are going to have to go really fast.  This is mostly meant to be an informational overview of things you need to be thinking about.

Topics:

Federal Trade Commission Guides

Intellectual Property Issues

Bloggers: Are You A Business?

Resources for  Bloggers and Small Businesses

I will try hard not to get too technical, but someteimes I have to because they are technical issues.

Disclaimer: This presentation is informational.  I am not your lawyer.  This is not legal advice.  We do not have an attorney/client relationship.  Your state may have additional applicable laws.  I am not licensed to practice in all 16 of the states represented (at the conference).  A lot of things I say will sound scary, but don't panic.  Just be careful.  There are lots of resources out there to help you stay doing things the way you need to be doing them.

The FTC

We're going to start with the FTC.  It is responsible for regulating what are considered unfair or deceptive trade practices, which specially includes advertisements.  Three years ago they added major revisions to ad guidelines, but they specially also drew out the inclusion of bloggers and social media.  How do they deal with media?  What is fair or unfair?  What are their endorsements?  Many states have other agencies that have other restrictions.  Laws apply both to bloggers and brands.  The FTC has said that they're most concerned about brands following the rules becuse they have internal counsel, but the law doesn't say this only applies to brands.  They still apply to you.  It's just that the things that enforcement people have said indicate that they are not planning to target bloggers in their enforcement actions.

The actual guides themselves are several dozen pages long.  The most important thing to know is that if there is a material relationship between a blogger and brand, you have to disclose it.  That means affiliate links, product for review, etc.  The affiliate links one of the biggest questions because people say it's so small and only $0.04, etc.  But you still have a material relationship.  If you participate in an ad network, you're ok, but if you have your own direct ads, you need to make sure that you disclose that anything you write about discloses this.  Sponsorships are also included - those longer term relationships.  Your readers deserve to know that because they should know that you love the brand AND are in a relationship with them.

The disclosure should be clear and conspicuous.  When the regulations first came out, the FTC was saying that people should put the disclosure at the top of the blog post because people may not read all the way to the bottom.  There's no specific language required.  While there is not a huge likelihood that they'll go after you for having the disclosure at the bottom, the statement of where it should be has not changed.

Clear means no legalese or confusing wording.  It's not that hard. " Brand A sent me this thing and here's what I thought."  "Brand B who advertises on the blog makes the best product."  Or "Brand C spnosored me, and ..."  You can do this in your own voice.

Placing the disclosure on a separate page is not conspicuous.  It does not meet the FTC's definition of conspicuous.  A blog policies page or about me page is great and good for brands to see what you do, but it is not sufficient.  For afffiliate links, you can easily do a hover over text for those links.  You can put that disclosure there.  It can still be funny and you, but it needs to be there.

The FTC disclosure requirements are satisfied with the saying "I am being compensated by Hallmark for this post, but the content an opinions are my own."  This was at the bottom of the post (in the example shown), but it is very clear and uses great language without feeling like you're compromising the authenticity of your story or your post.  More disclosure is never a bad thing.

If you're a brand ambassador, you might be safer with the slightly more disclosure at the top of the post than less.  For example, "This is part of Huffy Moms on Bikes."  Saying something like "This is a sponsored post.  See the bottom for more details" is less clear.  

There is no requriement to disclosure when you pay for something yourself.  The FTC thinks that people think that you pay for something unless you state that you didn't.  We may think differently and more along the lines that people assume we got it for free, so we may want to put it in there if we paid for something we rave about.  The FTC simply wants us to state that we have received something, and we can't do anything to change their assumptions now.

It's hard to do this in 140 characters.  It's not very many, and if you do a Twitter search for #ad or #spon, you can see a ton of examples of people who are paid to post stuff.  Some celebrity endorsers have gotten into trouble with the FTC for not disclosing their sponsorships after the FTC has gotten complaints.  The FTC has made it clear that althought they reference blogs, they are not referrring only to blogs.  Any media that has come after blogs are still part of this - Twitter and FB are still a part of this.  Facebook has terms of service that may go counter to what the FTC requires.  I'm not going to go in and figure out what they say you can and cannot do on your page.  If Facebook has decided that they don't like what you did, they can erase your page.  If your page is important to you, you want to make sure you don't cross them.  

If you have a material relationship with the brand, you should still disclose that even if you're just amplifying your content.  The FTC hasn't been clear on this.  If you are a part of an ongoing brand ambassadorship with a brand and you're talking about your role and amplifying it through your tweets and Facebook, that's what you're being compensated for.  That's a place where the clear and conspicuous role needs to play a part.  Simply having it on your post may not be sufficient.

So how do you do these disclsoures if it's not a text based medium?  What if its a vlog or YouTube?  Do it upfront.  Don't wait for the end of the video.  Even more than reading your blog post, people are even less likely to watch your whole video.  Say it upfront, or use text over video.  I wouldn't technically be able to do that, but most of you who are vlogging would have the skillset to do that.  It is again not specific magic language but simoly needs to be clear and conspicuous.  Use your own voice for it.

Resource suggestion form the audience: comp.ly

What about giveaways?  The law calls them contests, lotteries, and sweepstakes.  You have to be careful about when and how you do it.

Lotteries are heavily regulated.  Whatever giveaway you are doing, you need to ensure it doesn't land you in the world of lotteries.  If so, your state law comes into play.  This is when you charge for the chance to win.  If you do it, contact a local lawyer to figure out what is required.  Money is the obvious trigger.  But what is a retweet worth?  What is a "go make a really cool video about a car" worth?  This hasn't been litigated.  It doesn't say that you can make a 1 minute video but not a 3 minute video.  We have no way to regulate it except by common sense.  If there's something substantial people have to do to participate, you're edging in the direction of a lottery, and you want to stay away from this.

Contest: This is a prize for a nonrandom achievement. It is a cutest baby or funniest quote.  You are only likely to get into trouble with this where you set up something that you don't follow 100% (taking entries late) and someone compalins that you are engaging deceptive practices.  Or worse that they complain that you're doing unfair practices.

If you say that "This is how it's set up but the rules can change at any time" the likelihood that you will run into issues partly depends on the scale and scope of what you're doing.  Someone might complain if it's a computer, but a pack of McDonalds coupons, maybe not.  It's a better CYA than nothing, but if you're setting up your own rules, why not follow them?

The FTC mostly responds only to complaints.  If a brand is not being fair or treating your appropriately, you can file a complaint with the FTC or your state consumer protection agency.  Or any of your readers could do so.  This may not be the first step you want to take, but it is something you can do.  You may want to work it out amicably first.  There is a form online on the ftc.gov website where anyone can file a complaint.  I've mostly filed them about annoying faxes that come to my house at 3am.  Anybody can do it; you don't need a lawyer to do it.  Those people really want to look out for consumers and individuals. Particularly at the state level, they are likely to launch an investigation.  The BBB is another layer to look at that's maybe a little lower than the FTC or state agencies.

A new trend in blogging is the group giveaways: for $5 everyone has to follow you on Twitter, $10 you have to follow everyone on Twitter and FB. Then that money goes to one person. That sounds like a lottery.

Question:  Or we'll pool our money and get a better response than spending AdSense money.  For $5, they will add your blog link to be an entry into the giveaway.  It feels to me that it's more like it's advertising than a lottery.

Liza: I would go to New Media Advertising and ask them if this is something that is a safe choice, a risky choice, or a bad choice.  They could give you a better idea of how it would look since they can go through the computer and look at it with you.

Most blog entries are random entry.  Leave a comment, and you could win a bag of goodies.  It's uncomplicated by multiple bloggers and entities participating.  This is a sweepstakes.  If you're doing it in a difficult way, there are lots of agencies that can complain about you if they feel like you aren't doing it fairly or aren't giving away your prizes.  Set up your rules clearly, and follow them.  Once you set them up, go with it.

You may want to limit your participation.  If you allow international participation, you invite following the jurisdiction of other countries that you allow to participate.  It sounds like it would get complicated and risky.  If you are going to do that, you should look at what countries are likely to have participants and ensure that this is not something that they might consider it to be gambling or illegal in those countries.  Just know these things and be careful.  If you allow minors, there are some states that have rules for those who are 13-18 to participate.  If you allow under 13, the COPPA regulations state how you can interact with them.  It isn't impossible to do,but you have to have a different level of attentiveness to what you can do.  Either don't do it, or do it with your eyes open.

Intellectual Property

What is copyright?  It's a form of protection through the laws of the US provided to authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works.  Recipes are specifically excluded, as are clothing designs and knitting patterns.  This is my new life's work to figure out how this happened.  It doesn't seem fair, but these are areas of ecommerce and the blogosphere that are thriving, so when you look at other industries like movies and books that are protected but struggling even through they have huge copyright laws, then maybe we shouldn't try to pull ourselves under copyright laws even though it looks like we aren't treated fairly.  

Specifically for recipes, what you can't copyright is the list of ingredients and the list of instructions.  What is copyrightable is the voice - plunking potatoes into the bowl.  It's totally weird and makes no sense at all in the world of food writing.  The food blogging people have gotten quite good at infusing prose and their own narrative to make them more copyrightable.  Pictures are copyrightable, so if you have pictures and then a sentence, that's infusing more copyrightable material into your post.  If you are a food blogger, put as much of your voice into the post as possible.

Copyright takes effect automatically as soon as it is in a permanent form - once your write it down - for all other posting formats.

What is trademark?  A trademark is a word phrase, symbol or design that identifies and distinguishes the goods from one party from that of another.  This is not likely to be as much of an issue for bloggers.  It's more of a problem for brands. If you are reviewing something and you want to use a trademark image or logo, this is part of the relationship with the brand. You can use them if you have permission.  If the brand doesn't like it, they can have your web hosting company shut down your page or blog.  You have to go through a process to show that you aren't using copyrighted and trademarked material, please put my blog back up.  Before you use trademarked material, please be careful that you have permission.

Back to copyright.  When you write a blog post, it is automatically covered, as are pictures, music you write, videos, and podcasts.  If you find your material elsewhere, you can send those same takedown notices to their web hosts.  You can protect your own work and no, you don't need your own lawyer.  It's kind of a pain, but it's something you probably should do.

Ideas are uncopyrightable.  Layouts and such is a bit of a murkier area.  You probably couldn't get a takedown notice to stick with just a layout issue.  Think of breastfeeding versus bottle feeding.  How many articles are out there, and how many ways can you say the same thing?

Plagiarism is a bad thing and can get you kicked out of school.  But it's not a legal issue.  You don't want people hating you, but it's not exactly the same as copyright.  (Interjection: The DMC has taken down content for Liz Strauss through GoDaddy and Google, so therefore it's a standard process.)  While it might or might not get you into litigation, it's a bad idea and not going to bring you blogging success.

If someone complains, defend yourslf.  There are ways to make it more or less difficult for yourself. You have to go after every use more for trademarks than for copyright.  Trademark defense requires that you be vigilant.  Copyright is still copyright even if you don't go after every case.

If you have product that is on a group site, there needs to be an agreement on who owns the content, what will happen if you don't want to write anymore, who will get money from advertising, etc.  There isn't a right or a wrong answer, but you have to think about it.

If you don't get a result from a DMC, you have to then register a copyright on that material so you can prove it's yours.  The foodblogalliance.com has a great example and has tons of resources.  This is a blogger who has had a lot of issues with this and is publicizing how to deal with it.

Fair use.  Copyright is not completely sacrosanct.  It's not that you can never write a review of a movie or a book or comment on it.  And you can sample music, although the music industry gets really touchy.  The print industry has some practices around what percentage of an exact phrasing can be used, but this is not the law. Really what you need to note is - have you transformed the worrk.  It's not ok to reprint Harry Potter on your blog, but you can write a review and quote a passage to explain what you loved or hated about Harry Potter and that work wouldn't be confused with Harry Potter.  You can also write a parody about it so that it is not confusable with or at the same market share as the original, even though it's been influenced by the original.  You don't have to have permission to use other people's work in this way.

Ther are four factors courts consider for fair use.  The purpose and character of the use - are you trying to rip off Harry Potter and just changed the name to Larry Snotter.  The nature of the copyrighted work - if it's very short and you copied 3/4 of it, it's harder to justify than a paragraph of Harry Potter.  It goes got to the amount and substantiality of the portion taken.  If you put a bunch of spoilers into the review of Harry Potter, are they going to read the original?  Maybe they got all they wanted from your short version, so you diminished the potential market for it.  Use the least material you need to make your point.  And when in doubt, ask for permission.  You may or may not get permission or need permission, but if you want to use a picture or video clips, etc. you're on a lot safer ground if you get permission.

Is your Social Media Activity A Business or a Hobby?

How many of you have incorporated? You are a business if there is a reasonable expectatioon to earn a profit.  The IRS says it is a profit if a business made a profit in 3 of the last 5 years, including the current year.  In kind and other noncash income counts.  The value of being sent to a conference counts.  The value of the trip to Disney counts.  The IRS has said that if you get a swag bag that everybody gets, maybe not quite so much, but be careful what you accept.  There is still a tax enforcement unit in the Department of Justice.  They have proven that people have gotten a car and driver for a job or a house that it's imputed income even if it doesn't show up in your W-4.  Report all your income.

Things to think about: Blog policies, incorporating as a business, independent contractor or freelancer, hiring others....

Blog policies. What should people who read your blog know about you?  Do you accept reviews?  Do you take individual advertisers?  Are there specific limits on brands or type of businesses that you would not accept?  You may collect data of some of your users.  When you dig into traffic and look at IP addresses and say I have 17 readers in Canada, you're collecting data and may use it to know who is reading.  Even if all you do is dig around in IP addresses to see where people are from, that requires a privacy policy.  If you do anything else with it to engage in surverying or you have a way for people to sign up to comment on the blog - then you have IP and email, what do you do with it?  You should disclose that you have it and should say what you do with it.

Comment policy.  Many people have a policy about not permitting nasty, racist, inappropriate, etc comments.  If you have a policy about deleting comments, you should be upfront about it.

If you are going to incorporate yourself, look at your Secretary of State website.  It's pretty strightforwrd and not very expensive.  If you are an individual or small partnership, it shouldn't be too difficult.  You can be a sole propretiership, an LLC, an LCC or  a corporation.  What you really need to know is that if you are working with other people, everyone needs to be on the same page: who is investing what, who is responsible for what.  If you are alone, incorporating as something other than a sole proprietorship may protect your personal assets.  If you put up a ton of pirated movies on your site, you may have a ton of liability, and they could go after your house and assets.  If you have substantial assets and your partner has a more stable job or inherited property, incorporating helps with anything you want to protect from a worst case scenario. If you accept independent contractor assigments, you have to file taxes on a quarterly basis and ther are lots of rules about how to do this and you need to figure out the details before you get in trouble.

I blog with a mission - am I a nonprofit?

It is complicated.  A 501(c)3 must be religious, charitable, scientiic, testing for public safety, etc. If your blog does not fall in one of those categories, you can't be one.  If you want to be a 501(c)4, those are just for social welfare organizations.  I would not recommend that you do this unless you are truly a social welfare.  This is tricky and  complicated; you should get legal advice.

Hiring people

You need to think about who owns the rights to the work.  If you need written contracts, the people at new media rights might be able to help out.

You may wind up in a position where you have employees, and you should know that bloggers are considered to be involved in interstate commerce, so minimum wage laws apply, overtime and other state laws like discrimination may apply, too.

Resources

FTC Internet Advertising: business.ftc.gov/documents/bus28-advertising-and-marketing-internet-rulles-road

Small business and blogger legal help: http://newmediarights.org - They are free, and you will likely be assigned a law student who works under a licensed attorney.

Internal Revenue Service: http://irs.gov