Tag Archives: Instagram

Breaking Down The FTC’s 91 Letters About Social Media Endorsers

The FTC showed that they were taking social media endorsements seriously when they sent a series of 91 letters warning brands and endorsers alike about the need for disclosures.  45 letters were sent to brands and the remaining 46 letters were sent to the individual endorsers who posted on Instagram.  The sheer number of warning letters, 91!, coupled with the FTC showing the form letter they will use for future violations signals this issue will likely come up again for brands and organizations who aren’t following the Endorsement Guides.

The National Law Journal submitted a Freedom of Information Act request to obtain copies of all the letters and they were successful.  I read through all 91 letters to see if there were any interesting tidbits and I’ve summarized the results so you don’t have to do the same.  Enjoy!

Product categories

Four main categories make up the majority of the 45 warning letters, with some significant overlap between some of those categories.  I broke down the products into the following categories and distinguished between them as follows:

  • Beauty – 14 letters.  Products that are marketed towards changing your appearance without some associated health benefit (which would put it in the Health category).  Admittedly, some of the products are difficult to classify between Beauty and Health.  Cosmetic goods like eyeliner fall neatly into a Beauty category, but what about a product that claims to give your body the vitamins it needs specifically so your hair doesn’t break in the winter?  I erred on the side of any health-related claim, no matter if it has clinical support or not, went into Health.  So these 14 letters, still the most of any category, are only products that make no health-related claims.
  • Fashion – 10 letters.  Clothes, shoes, and accessories.  Also includes subscription boxes that primarily have products in this category.
  • Health – 9 letters.  Products whose primary purpose is to impact your health or who make some kind of health-related claim.  Includes external health products (blister bandages), internal health (vitamins), or items that could also be considered Beauty products but are using some kind of health claim (Flat Belly Tea and Flat Tummy Tea, both have a primary Beauty purpose but use marketing around giving you more energy…I’m not making a judgment on the veracity of those claims, just how to categorize them).
  • Food – 9 letters.  Food and beverage products including subscription boxes with food products.  I also included alcohol in this category–not because I consider them food but because they are consumable goods most similar to food.  If you want to break it out then there was a single vodka product in the 45.
  • Gadgets – 1 letter.  There was a single gadget product (a hoverboard) that didn’t fit into the other categories and seemed different enough from Toys.
  • Toys – 1 letter.  There was a single toy (My Little Pony) that received a letter.
  • Retail – 1 letter.  There was a single letter to Cabela’s, an outdoor/hunting/fishing focused retailer.  The picture featured a celebrity in front of dozens of fishing poles, none of which are easily identifiable as to brand, but beneath a large sign showing the store was Cabela’s.

What to take from these data: Certainly if your brand operates in one of the categories then the FTC has shown it is potentially looking at your endorsements.  But the intentional inclusion of three categories with just a single letter is, I think, an obvious shot across the bow warning everyone that any endorsement may be scrutinized by the FTC.

Endorser engagement

To look at engagement I only looked at the number of likes or hearts (since all the posts were on Instagram) that the posts received by the time the FTC printed them to include in the letters.  While posts also received comments, those are both a more substantive form of engagement that could require further classification and, frankly, I don’t have that kind of time.  But more importantly, Instagram posts prominently show the number of Likes/Hearts a post receives while the callout for the number of comments is both lower, smaller, and in a more subtle font color than the simple engagement count.

Individually, there was a large range of endorser engagement for the posts targeted by the FTC.  The highest single engagement in a post was a video that was viewed 1.4 million times (videos on Instagram have their views displayed most prominently, Likes/Hearts are buried lower in the description for videos than for pictures).  The highest non-video engagement belonged to Jennifer Lopez for her post about Beluga Vodka (631,000).  The lowest engagement on a targeted post Belonged to Farrah Abraham for her post about TeeSpring, a t-shirt printing company (1,550).  This shows the FTC was considering a broad range of posts in terms of how effective they were in engaging with customers.  Overall, the numbers were considerable at the category level (note that some letters included multiple posts which were used for the average calculation rather than just the number of letters received):

  • Beauty Total Engagement: 2,280,364.  Average Engagement: 142,523.  If you removed the video that received 1.4 million views from this calculation (the only video post in all the FTC letters) then the total engagement drops to 880,364 and the average drops to 58,691–those numbers would significantly drop the Beauty category in these rankings.
  • Fashion Total Engagement: 1,844,686.  Average Engagement: 141,899.
  • Food Total Engagement: 1,656,756.  Average Engagement: 165,676.
  • Toys Total Engagment: 501,000.  Average Engagement: 501,000.
  • Health Total Engagement: 170,791.  Average Engagement: 17,079.
  • Retail Total Engagement: 85,800.  Average Engagement: 85,800.
  • Gadgets Total Engagement: 28,400.  Average Engagement: 28,400.

I chose to rank the product categories above in order of total engagement.  If they were ranked by average engagement then Toys would have easily led the pack.  I’m not sure if that’s the subject matter (My Little Pony is popular, after all) or the category itself.  The individual who endorsed My Little Pony, Vanessa Hudgens, is one of the few who received a warning from the FTC for multiple posts–her other endorsement for Graze Snacks only gained 269,000 Likes/Hearts, so there is something to be said for My Little Pony’s draw.

What to take from these data: The difference between the number of letters sent to brand categories versus the total and average engagement received shows that the FTC is looking at a wide variety of effectiveness when it comes to Endorsement Guideline enforcement.  Using high-profile endorsers or a series of less well-known endorsers can equally draw the FTC’s attention.  Bottom line: if your brand is considering engaging an endorser than you are probably hoping for more engagement than the minimally engaged post in the FTC’s letters (1,550); meaning you are potentially in the crosshairs.

Attempted Disclosures

The vast majority of posts the FTC took issue with made no attempt whatsoever to disclose a relationship between the endorser and the brand.  Of the 45 brands that received complaints, only 11 of them had some attempt to disclose that relationship, yet none of them were sufficient to avoid receiving the FTC letter.  The FTC has not expressly blessed any form of disclosure, the closest they have come is saying that starting a post with “#Ad:” may be sufficient.

The FTC’s form letter, customized for each violation, calls out that disclosures need to be “clear” and “conspicuous” (FTC quotes, not mine).  The FTC says this standard is met by making the disclosure unambiguous and it should stand out.  Since social media platforms such as Instagram don’t allow for text formatting, the ability for a disclosure to stand out largely depends on its placement and the context of the entire post.  That became one of many contextual elements called out by the FTC.  In a few instances noted below, the FTC added to the form letter to address attempted disclosures as inadequate.

Examples of inadequate disclosures:

  • “Thanks…”  Five of the complained about posts did contain some form of thanking the brand.  The FTC called these out as being inadequate since a satisfied customer might equally thank a brand–just a thank you to the brand did not communicate that the endorser was being paid in money or products in exchange for the post.  The FTC also noted no difference between text that thanked the brand by tagging them or just by using their name.
  • Disclosure outside visible space.  Every letter sent by the FTC mentioned that a consumer shouldn’t have to click the “More…” link to read text that couldn’t initially be loaded in order to see a disclosure.  One example violation, Shea Moisture, had so much text that the screenshot couldn’t capture all of the text–it is unknown if that post had any disclosures by the end of the text.  The standard text the FTC put in their letter mentions the first three lines of an Instagram post being visible for mobile users, strongly suggesting that’s where the FTC would like to see those disclosures.
  • “Partner.”  In two of the Instagram posts, the term #Partner (or a brand specific #fffpartner) were used in a post.  The FTC said that this hashtag is insufficient to convey that the post was sponsored.  The FTC recommended the hashtag #Compeed_Partner (that’s how they spelled it, so I think they meant #Comped_Partner although it’s interesting to note the FTC thinks “Comped” is sufficient to communicate “Compensated”) as one “more effective” option (note they did not explicitly say it would be enough, just better than what was done).  In the example of #fffpartner, the FTC suggested that “FabFitFunPartner” would be “clearer” (bringing up the same caveat as with the “more effective” option).  It is also interesting that the FTC lists a hashtag with a brand name and partner as a potential option even though that doesn’t include a specific call-out about pay/compensation.
  • Multiple hashtags.  The FTC also called out when disclosures are made surrounded by other hashtags or tags.  One example post, by Scott Disick for Pearly Whites (teeth whiteners), ended a paragraph of text accompanying his photo with the URL to the product’s website, the hashtag #nosensitivity, the disclosure hashtag #ad, and ending with another tag of the sponsoring brand’s Instagram account.  The FTC noted that the attempted disclosure here may be obscured by putting it at the end of the text and in the middle of multiple hashtags and mentions.
  • #sp.  This abbreviation for “sponsored” is likely not to be understood by consumers according to the FTC.
  • Employment and ownership.  While being paid for an endorsement is an obvious material connection to the sponsor thereby requiring a disclosure under the Endorsement Guidelines, other material relationships can exist without being explicitly paid for.  One such material connection is if you are the owner of the brand, as the FTC pointed out in their letter concerning Sean Combs’ AQUAhydrate post, a bottled water company in which Mr. Combs is a part owner.  With other FTC actions addressing employee disclosures in social media posts (the Playstation Vita case), it is clear that the FTC considers employment and ownership worth of disclosing in posts about that brand.
  • “My friend…”  Although not expressly called out in a letter customization, one post in the batch attempted to reference the sponsoring brand as being a friend of the endorser.  This was insufficient as a disclosure.

What to take from this: The FTC has still never provided a clear way to disclose an endorsement. They have, instead, taken shots at attempts to disclose and have hinted at various techniques that might be more effective at disclosing a relationship, but nothing so concrete as “If you say X then you have met your obligations under the Endorsement Guidelines.”  These letters still don’t get us to a place where brands know exactly what to do, but we’re getting closer by knowing what methods are not sufficient.  If your disclosure program isn’t exceeding these complained-about tactics listed above then you need to up your disclosure game.

Perceived Endorsements

One post in the batch of letters caught my attention in the list.  The FTC sent letters to both the Dunkin’ Brands Group (owner of Dunkin’ Donuts) and Heidi Klum over the following post (poor quality because grabbed from the PDF):

I thought the inclusion of this post was a bit strange because I wasn’t sure if it was an actual endorsement.  Yes, Ms. Klum is sitting behind a very obvious cup showing the Dunkin’ Donuts marks.  But she is doing so because the picture was taken on the set of America’s Got Talent (AGT), a talent competition show with which I am familiar mostly because my 11-year-old son loves it.  Dunkin’ Donuts sponsors the cups that sit on the judges’ table during episodes–in previous years the cups have been sponsored by other brands.

While it is entirely possible that Dunkin’ Donuts, in addition to whatever deal they made with the AGT producers for cup branding, also made a deal with Ms. Klum for her to post this picture.  It is also possible that Ms. Klum, in the middle of doing a job that she has posted behind the scenes photos from in the past, just did another picture and took advantage of the fact that most fans of the shows would recognize the cup and know that she was on set (which can also be made out in the background, although not easily).  The text accompanying this original post, “Guess what I am doing today,” makes no mention of the Dunkin’ brand or even something tangentially related to the beverage itself.

Ms. Klum responded to the FTC letter by taking down the original picture and posting this cropped version with a new, telling caption:

“This is NOT a sponsored Dunkin Donut post … and I did NOT get paid for this!!!” You can tell she’s serious because it has three exclamation points.

What to take from this: When it comes to social media influencers and celebrities, any inclusion of a brand could raise the suspicion of a paid-for endorsement.  There’s little you can do from the brand perspective to prevent these kinds of posts (in fact, you’re not so secretly hoping you get them) but to avoid upsetting the FTC it would be an excellent idea to have a strong disclosure program for the endorsements your brand does pay for.  Then when the rare unpaid, innocent endorsement comes along you can point to your existing program as support for your claim that this was not the kind of post that requires a disclosure.

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Filed under Celebrities, Commercial Activity, FTC Endorsement Guidelines, Instagram, Social Content, Social Marketing

The New Instagram Terms Will Try To Sell You Bacon (And Why You Probably Don’t Care)

wwb

A short story about the worldwide bacon shortage for only $2! I’m in!

Instagram’s new terms of services are a more plausible reason for the world ending than the Mayan calendar.  Or at least you might think that’s true if you use Instagram and read all the tweets and blog posts talking about how the changed terms could spell the end of the service (Fox News), how they are a virtual suicide note for the platform (Gawker),  or how they are possibly raising concern among users (Hey!! How did that somewhat reasonable headline get posted?  C’mon CBS, get with the program!).

Those of you familiar with the thorough and methodical analysis that most blogs and Twitter users perform on terms of service and privacy statements may be shocked to know that the majority of commentary is blowing the issue out of proportion.  That’s not to say that changes are happening and that you may not like it, but for the majority of social network users here’s the kicker: you’ve been seeing it for months and haven’t realized it.  And, happily for us all, I get to show you how this is true with everyone’s favorite internet breakfast meat.

First, let’s review the key changes to Instagram’s terms of service.  There are two main provisions that the Interwebz point to with fiery hatred and prophesies of doom: using your data for ads and not clearly marking ads.

Here’s the new Rights section 2 in the updated terms of service:

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.

Instagram is giving itself the right to use your content to generate advertising revenue.  For some reason people find this section incredibly offensive.  I find that amusing since the current Instagram terms already grant Instagram these rights.  Since these links probably won’t work after Instagram switches the terms, here’s the current language in sections 1 and 2 of the Proprietary Rights in Content on Instagram.

1. Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.

2. Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

While the exact language is different, reading those two sections gives Instagram the same rights as the new terms.  The new terms do a better job at communicating the usage, I think.  And the new terms actually provide more limits on what Instagram can do with your content.

So if you’re concerned about Instagram using your content to make money I have two responses.  First, how did you think they were going to make money?  Second, why weren’t you concerned before?

But that’s just the first big change that has unleashed the fury of the fuzzy filtered.  The second change that is the Worst. Thing. Ever. (today, anyway) is Rights section 3:

You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

“WHAT WHAT WHAT?!?!” you tweet with the righteous fury of the recently caffeinated.  Showing us ads and not telling us they’re ads or how they’re ads, that’s just…icky!

You may be right (but lay off the caps lock, mmkay?) but if you use Facebook (and I’ve heard a few people do) then you’ve probably already been seeing these ads-that-aren’t-clearly-marked-as-ads for a while.  The majority of changes to Instagram’s terms seem to bring them in line with Facebook’s terms, this is just one of them.  That shouldn’t surprise anyone–if you buy something for $1 billion you may make a few changes.  But what may surprise people is that Facebook has been doing this kind of activity for a while.

I first noticed it in October when Facebook started letting users pay $7 to promote their posts.  Being the social media geek I am, and having a few friends who are also social media geeks (you know who you are), I saw some people actually pay to try this out.  I thought it was amusing, but I did not participate.  Then I saw some other posts show up as promoted that struck me as odd–a friend who posted how he wanted these sweet Star Wars cuff links (he actually wanted the Millenium Falcon but those are sold out).  I understand wanting cuff links that can do the Kessel run in less than 12 parsecs, but paying $7 to tell people that?  Seemed odd.

Then the posts hit closer to home.  A few weeks ago my friend Curtis Edmonds and I published on the Kindle platform a short story we’d written called World War B.  It’s an oral history of what happened when the world ran out of bacon.  Oh, it’s fiction.  Didn’t mean to panic you.  It’s only $2 and we’re giving all the proceeds to local food banks and makes a great electronic stocking stuffer and oh, sorry, back to the law stuff.

We posted links telling people about the story since we enjoyed writing it and figured others would enjoy reading it (especially at such a bargain price that–SLAP–sorry, I just hit myself for going back into marketing mode).  A few of our friends shared the link as well.  That was nice of them.  Then a few days later, I saw one of the posts again.  But this time it was “Sponsored.”

Promotededit

This struck me as odd.  Why would a friend pay $7 to promote a link to arguably the funniest short story about a worldwide bacon shortage ever written?  Then I saw another one.  And another.  And it hit me–Facebook is doing what Pinterest did long ago.  Back when Pinterest was first exploding they would modify links to commercial websites so that they would use a Pinterest affiliate account.  At the time I called it brilliant yet creepy (since it wasn’t disclosed).  I think the same thing here, it’s a smart way to make money but also a bit odd in how it’s done and how it’s disclosed.  They are taking posts made by your friends and Sponsoring them.  Perhaps they earn an affiliate fee, or perhaps they have better deals with the seller (they are Facebook, after all).  Either way, they are taking existing content and turning it into an ad–exactly what the terms allow them to do.

Whether this runs afoul of any FTC guidelines about disclosures or advertising also needs to be addressed.  It’s one thing for Facebook and Instagram to give themselves the rights to do so with your content, but their terms won’t help them if they’re breaking the law.  For now the Instagram activities are hypothetical and Facebook Sponsored posts haven’t received too much attention.  But if the programs expand and morph into something new, there may be more scrutiny from authorities.

In the meantime, if you like sending square pictures that look like they were taken in the 1970s but then you add tilt shifting to show it was made in the 2010s, then keep using Instagram.  And if you don’t mind giant social networks providing you free hours of usage in exchange for using some of your data to make some money, then keep using Facebook.  If either is a problem then you can stop.  But know that these changes aren’t brand new and you’ve probably never been hurt by them, so you may want to calm down and see what happens.

Of course, “Users calmly approach new terms of service” won’t get you to click through.

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Filed under Consumer Protection, CopyFUD, Copyright, Facebook, FTC Endorsement Guidelines, Instagram, Laws, Social Content, Social Marketing, Terms and Conditions

How Social Media Helps And Hurts Elections

Tablets in 2000 had a passable Notes app, but Angry Birds was horrible.

Election nights are always fascinating to me.  Not only do you have candidates and issues but you also have analysis from across the spectrum and a wealth of different technologies to show you the results.  12 years ago the country watched while Tim Russert used an early tablet device known as a whiteboard to show the country how the entire election hinged on the outcome of Florida (a lesson we would continue to learn for weeks after).  Last night we had networks using giant interactive maps sketching out potential scenarios, zooming in on specific counties and comparing their results with previous elections.

Now that social media has reached a level of commonplace acceptance (we’ll talk about that in a future post) I found it fascinating to see how it became part of the election night process.  We were connected with our favorite reporters or candidates or analysts and could instantly see what they had to say throughout the night.  No more just waiting on a particular channel until they came back on or flipping between channels to find them.  And we could interact with our friends and colleagues around the world whether they agreed or disagreed with our political views.

Personally, I was able to participate in a group chat with ten friends whom I frequently email.  In the interests of being a bit more interactive we ended up on a giant Facebook chat session and over the night sent over 1,000 messages back and forth.  We had participants on both coasts, people in the middle of the country, even one Chicago resident who happened to be in Australia.  It was an amazing feeling to have these conversations as the night progressed and more than once I was thankful for what social media has done to connect people.

But as we’ve seen with so many issues, social media can have benefits and drawbacks.  Let’s be positive and start with the benefits. Beyond connecting people and providing a forum for discussion, social media is fast and widespread–two fantastic qualities for something so time sensitive as a day to conduct nationwide voting.  Some states in the Hurricane Sandy-ravaged northeast passed emergency laws that allowed residents to vote in any polling location given the difficulty in traveling.

Multiple polling location voting is also something that was available for the first Presidential election in my own, non-hurricane ravaged Travis County in central Texas.  Austin residents could vote in any polling location.  That’s a great thing provided you have access to a Twitter feed or connected account that would tell you while the line at a grocery store is 1.5 hours long there’s a polling location two miles away with nobody in line.  I expect that by the next election we’ll see a collection of apps or message networks that can better alert voters of potential lines and advise them where to go.  I also hope that trend of allowing people to vote in different locations continues.  That’s a great benefit social media can bring to the current election process.

There is, however, a dark side to social media and elections.  Social media has flooded us with opportunities to share content with our friends and community.  Status updates, locations, photos, videos, badges–these are a part of our lives and we want and, to some degree, expect to be able to share the content we choose with the audience we choose.  So we grow concerned or upset when we hear stories about how smartphones are not allowed at some state’s polling places.

The Citizen Media Law Project has a great table summarizing the various state laws on recording devices in polling places–whether the devices are allowed, whether there is a statement on their use, and whether you can record your own vote.  There is certainly an innocent side of taking pictures at a polling place.  Pictures of people voting for the first time.  Pictures of people proud to support their candidate.  Funny pictures of people dressed up like Big Bird in line to vote (because that’s how we roll in Austin).

But there’s also a dark side to pictures in polling places.  Like stories of employers who threaten employees with termination unless they take a picture of their ballot showing they voted for a particular candidate.  Or organized efforts to force proof of votes through threat of violence or rewarding with payment.  The risk of ballot recording can be determined by each state but it is something to keep in mind–my last post was about how social media has broken anonymity, a valuable commodity.  Certainly, anonymity for a ballot is an important value to protect and if it means we lose some funny filtered Instagram pics of a ballot as a trade-off then I hope most people will be okay with that.

However, elections are getting more complicated and now many voters do their research on their phones.  Possibly while in a long line waiting to vote.  Walking into a polling place and then being told you can’t use your phone can cause a bit of a panic if you’re struggling to remember dozens of propositions or ballot initiatives or local candidates.  You should be able to record your notes onto paper and then vote, if that’s an issue.  Still, that’s remarkably inefficient and something that social/mobility should be able to address.  I’m also hopeful the problem of recording via smartphone can be solved while allowing people to use their phones for appropriate items like accessing notes, but it is a tricky balancing act.

And then there’s the biggest issue of them all–why can’t we vote using our smartphones?  Not exclusively, of course.  There should still be polling places and absentee ballots and other measures.  But with the rise of smartphones across the country, shouldn’t we be able to use them to vote?  That may seem difficult or outlandish, but wouldn’t we have thought the same thing a few years ago about depositing a check with a phone (now many banks support this by taking a picture of the check)?  Or paying bills with your phone (even more banks support this, heck even Starbucks lets you do it)?  Or signing contracts (you can e-sign contracts on your phone now, even complex contracts like real estate closings)?  Those are activities that many years ago we couldn’t have predicted could be done with a phone, yet they are now commonplace.  Why not voting?

When you see video footage of people waiting in lines for hours to exercise their most fundamental of rights I would think everyone can agree that we should have a better solution.  Granted, many people were concerned about e-voting machines and you still see the random stories of glitches and rogue software so there’s sure to be some pushback on the idea of using your phone to vote.  But we’re fooling ourselves if we thought paper ballots were always secure–phones should be more secure than previous systems we relied upon for decades if not longer.  And there would always be other options.

Social media is about conversations and speech.  Voting is the ultimate realization of free speech.  Shouldn’t social media and the mobile technology wave be able to help bring voting into the 21st century?  It’s an idea worth pursuing and we’ve got a little under 4 years to work on it.

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Filed under Authentication, First Amendment, Identity, Laws, Social Tracking