Implementing a Social
Media Advertising Strategy
By Gregory J. Sater and
In the February issue of Response, we wrote about he legal issues that can arise when your employees, agents or affiliates promote your products or discuss your competitor’s products through social media.
This month, we write about what should go into a social
media policy to address those issues.
First, however, a word of warning: it is not enough to
have a social media policy. If the Federal Trade Commission (FTC) comes knocking, you must be able to
show that you actually implemented and enforced it. You
should put your social media policy in writing, and then
implement procedures to ensure that anyone who falls
within its scope is actually complying with it.
Terms re: Intellectual Property (IP)
No post or other online content (e.g., a Tweet or Facebook post) by any employee, online affiliate or anyone
else with a material connection to you or your products
should infringe a third party’s IP rights or disclose proprietary information, including:
❯ No use of third-party text, photos, video, images
or other copyrightable material or any third-party
trademark without prior written permission from
the holders of the rights thereto.
❯ No use of third-party (or your company’s) proprietary or confidential information.
❯ All use of your company’s trademarks and other
intellectual property must comply with your guidelines.
❯ To get written permission to use a third party’s
intellectual property, there must be use of only your
Terms re: Defamation, Rights of Publicity and
Privacy and Other Torts
Your social media policy should prohibit posts or other
online content that
include, among other
❯ False, misleading or
about people or companies.
❯ Use of anyone’s
name, image, likeness or identity without that per-
son’s prior written permission.
Terms re: False Advertising
Posts and other online content can qualify as advertising under the law, meaning they need to comply with
state and federal laws governing advertising. Require that
any statements made in a post be truthful, not misleading
Terms re: Endorsements and Testimonials
The FTC revised its Guide Concerning Use of Endorsements and Testimonials in Advertising in 2009, in
part to address social media advertising. The Guide may
only be advisory, but the FTC uses it to evaluate whether
endorsements or testimonials have violated Section 5 of
the FTC Act, which prohibits unfair and deceptive practices. Among the Guide’s requirements to incorporate
into your social media policy are:
❯ Endorsements must reflect the honest opinions,
findings, beliefs or experiences of the endorser.
❯ Endorsements may not contain any representations
that, if made directly by the advertiser, would be
deceptive or could not be substantiated.
❯ Endorsers must disclose the existence of any financial or other “material connection” between them
and the marketer.
❯ Disclosures of material connections must be clear,
conspicuous and near the endorsement.
❯ Endorsements should not convey an endorser’s results unless it is known that those results are typical
or the communication also discloses what the “
generally expected results” are from using the product
in the depicted circumstances.
No social media policy can preclude all liability that
may arise for you. Always getting final clearance through
your company’s legal counsel or a responsible manager
for any decisions about or concerning these policies is