With the conclusion of a formal decision against Trevor Trevor “TmarTn” Martin and Thomas “Syndicate” Cassell, the FTC found that these specific influences had not clearly violated disclosure guidelines in their promotion of their CS: GO gambling site.
And even though that particular case is over, the FTC is taking steps to prevent such cases from becoming a major issue in the future by making its guidelines for disclosure more clear and concise. In a Twitter Q&A about its policies earlier this week, the FTC defended the decision but also made it clear that they’re not sitting idly by. The FTC disclosed that it had also sent 21 warning letters to other influencers engaged in suspect behavior.
The FTC openly criticized the built-in mechanisms for disclosure such as YouTube’s “includes paid promotion” mark, the “Paid” tag on Facebook, or Instagram’s default disclosure as not being useful. Calling them inadequate and cautioning users not to rely solely on these mechanisms to shield them from legal or financial issues. The overall goal here is to make paid promotions and endorsements for which other compensation was received as clear as possible. Avoiding generic tags like “#spon” or “thanks” is definitely advised, as these are too ambiguous to be considered a clear disclosure of sponsorship or other compensation. One should also avoid burying the disclosure in the midst of the promotion, so don’t clutter up a sponsored tweet with other hastags for example.
It is imperative that these disclosures be made in a up front fashion that is hard to miss. So don’t expect burying a generic “assume all content is paid for” or other such warning in your YouTube video descriptions to fly any longer. If the platform in question is Snapchat or Instagram, the FTC wants to see the disclosure superimposed directly over the images. Even platforms that don’t have direct disclosure mechanisms can potentially be considered ads, like Facebook Likes. So you’ll need to be strenuous in the deals you take as an influencer and the ways in which you disclose them.
Disclosures are also required on reviews of items the influencer received for free, even if there was no payment involved and no agreement that anything would be posted in exchange for the item. The FTC also made it abundantly clear that non-monetary compensation counts as an ad, and must be disclosed as such.
Speaking about it’s endorsement guidelines, the FTC had this to say:
“If you’re employed by a newspaper or TV station to give reviews – whether online or offline – your audience probably understands that your job is to provide your personal opinion on behalf of the newspaper or television station,” it stated in a FAQ for its guidelines. “In that situation, it’s clear that you did not buy the product yourself – whether it’s a book or a car or a movie ticket. On a personal blog, a social networking page, or in similar media, the reader might not realize that the reviewer has a relationship with the company whose products are being recommended. Disclosure of that relationship helps readers decide how much weight to give the review.”
Those with lingering questions about the FTC’s guidelines were encouraged to reach out to endorsements@ftc.gov.