Advertising and Promotions in Social Media: Key Issues Checklist

This checklist presents legal issues a company should consider when running advertising or promotions such as contests or sweepstakes on social media platforms. These issues include endorsements, disclosures, user-generated content, and platform guidelines.

Comply with Advertising Law for Social Media Communications

• Ensure that advertising is truthful and not misleading in social media, just as in traditional media, like television or print. Social media communications are advertising, including messages in the form of:
  • Twitter tweets and retweets;
  • Facebook posts;
  • Pinterest boards;
  • Instagram photographs;
  • Snapchat posts; and
  • YouTube videos.
• Do not allow the informal nature of social media to create a lesser standard for advertising law compliance.

Substantiate All Advertising Claims

• Substantiate any objective claim in social media before publishing, just like in other media.
• Evaluate each advertisement for all:
  • express claims; and
  • implied claims.
• When reviewing the advertisement for implied claims:
  • examine the net impression of the advertisement; and
  • consider all reasonable interpretations of the advertisement’s message from the perspective of a reasonable consumer.

Make Clear and Conspicuous Disclosures

• Make all necessary disclosures clearly and conspicuously in social media.
• Apply the Federal Trade Commission’s (FTC) disclosure principles as stringently to social media as to traditional media.
• Focus on the placement, proximity, presentation, and prominence of the disclosure so that consumers will notice it in connection with the triggering claim on every platform and device on which the ad will run.
• Avoid running ads on devices or platforms where clear and conspicuous disclosure cannot be made.
• Avoid scrolling to get to a disclosure, but if scrolling is necessary, use text or visual cues to encourage consumers to scroll down to see it.
• Make the disclosure unavoidable, for example, by preventing the consumer from completing a transaction without first viewing the disclosure.
• Ensure that nothing on the screen, such as graphics, sound, or hyperlinks, detracts attention from the disclosure, preventing consumers from noticing it.
• Do not use hyperlinks when disclosures are an integral part of the claim. Try to avoid using hyperlinks to disclosures in other cases, but if it is necessary:
  • make the hyperlink obvious and place it as close as possible to the relevant information;
  • label the hyperlink as specifically as possible to convey the importance, nature, and relevance of the information to which it leads;
  • use the hyperlink styles consistently so that consumers know which text is hyperlinked;
  • take consumers directly to the disclosure on the click-through page;
  • assess the effectiveness of the hyperlink by monitoring click-through rates and make changes accordingly; and
  • consider how hyperlinks function on various programs and devices.
• Avoid using pop-up disclosures as they can easily be blocked or ignored.
• Repeat disclosures as needed.
• Place the disclosure for an audiovisual post within the video itself and have it displayed long enough for a consumer to be able to read and understand it.
• Do not use abbreviations or icons as disclosures unless consumers can easily understand them.

For more information on making compliant disclosures in social media, see the FTC’s .com Disclosures: How to Make Effective Disclosures in Digital Advertising.

Follow the FTC Endorsement Guides

• Establish an internal endorsement policy that complies with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides) (16 C.F.R. §§ 255.0-255.5).
• Determine whether a speaker (such as an influencer, blogger, or celebrity) promoting the company, its brands, products, or services in social media is an endorser covered by the Endorsement Guides (sponsored endorser). A speaker becomes a sponsored endorser by having a material connection to the company, for example when the company:
  • hires an agency to blog, post, or serve as a community manager on its behalf (both the agency and its employees then become sponsored endorsers);
  • has an agreement with a speaker;
  • pays a speaker;
  • provides a speaker with free prizes for giveaways or sweepstakes;
  • provides a speaker with free samples to review;
  • provides a speaker with free samples after a speaker has blogged independently, especially if providing the free samples creates the expectation of additional free samples (which would make the speaker a sponsored endorser going forward, not retroactively); or
  • engages affiliate marketers to advertise, blog, endorse, or sell on its behalf (making the affiliates and their employees sponsored endorsers).

For more information on how the FTC interprets material connections, see The FTC’s Endorsement Guides: What People Are Asking.

• Ensure that employees understand that they are sponsored endorsers and should disclose their employment relationship when posting on social media about company products.
• Train agencies, sponsored endorsers, and employees on the internal endorsement policy.
• Prepare a contract or guidelines to govern sponsored endorsers’ actions that:
  • requires endorsers to disclose their material connection to the company clearly and conspicuously in their posts;
  • advises the endorsers that their statements should reflect the endorsers’ honest opinions, beliefs, and experiences;
  • requires endorsers not to make any false or misleading statements about the products;
  • lists claims about the product that the company has substantiated; and
  • advises endorsers how to access the FTC’s guidance on endorsements and requires them to read the guidance.
• Advise sponsored endorsers on how to make a clear and conspicuous disclosure of their material connection to the company. For example, require the sponsored endorser to:
  • in video posts, place the disclosure within the video itself, not just in the description of the video;
  • superimpose disclosures over the images on image-only platforms;
  • in Instagram posts, disclose a material connection before the “More” button;
  • avoid using ambiguous abbreviations, like “#sp,” which may prevent consumers from understanding that the content is sponsored;
  • treat sponsored tags, including tags in pictures, like any other endorsement; and
  • repeat the disclosure as necessary to ensure that consumers see it, such as in a live stream.
• Avoid encouraging endorsements that use features such as likes, Pins, or shares that do not allow for clear and conspicuous disclosures if the absence of that disclosure would be misleading.
• Advise sponsored endorsers to use any paid endorsement tool required by a social media platform, such as the influencer tools launched by Facebook and Instagram. However, keep in mind that use of those tools alone may not be enough to comply with the Endorsement Guides.
• Monitor sponsored endorsers to ensure that they:
  • disclose their material connection to the company clearly and conspicuously; and
  • otherwise comply with their contract or guidelines.
• Correct or require sponsored endorsers to correct any of their failures to comply with their contract or guidelines.
• Be prepared to take action against sponsored endorsers for their failure to make required disclosures clearly and conspicuously, such as:
  • terminating them; or
  • withholding payment.

Follow the FTC Guidance on Native Advertising

• When creating a native ad on social media, comply with the three main principles of the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements by:
  • focusing on the native ad’s transparency, ensuring that it does not suggest to consumers that it is anything other than an ad or that it comes from anyone other than the sponsoring company;
  • determining whether the native ad is so commercial in nature and so readily obvious as an ad that additional disclosures are not required; and
  • making any disclosures necessary to prevent deception clear and prominent.
• Do not use deceptive door openers to induce consumers to view advertising content. Identify native ads as advertising before consumers arrive at the advertising page from the main social media post, page, or platform. No matter how consumers arrive at advertising content, be clear about its commercial nature.
• Use words that are easy to understand to disclose a native ad in social media, such as:
  • ad;
  • advertisement;
  • paid advertisement; or
  • sponsored advertising content.
• Avoid words that may confuse consumers about whether the content is advertising or editorial, such as:
  • promoted; and
  • promoted stories.
• Remember that the viral nature of native advertising causes native ads to reach and be interpreted by unintended audiences and this result affects both:
  • determining whether a disclosure is necessary; and
  • creating an effective disclosure.
• When weighing the effectiveness of a native ad disclosure in social media, consider:
  • consumers’ customary use of the social media platform and their experience with content on that platform (that is, context matters);
  • whether advertising content can be accessed through multiple channels;
  • that the format of the content will determine the consumer focal point where the disclosure should be placed; and
  • the company’s use of sponsored content outside of the original publisher’s site.
• Remember that how consumers choose to interact with content on a social media platform influences the weight or credibility consumers give to information published on that platform.

For additional guidance from the FTC on native advertising, see FTC: Native Advertising: A Guide for Businesses.

Comply with Legal Requirements and Social Media Platform Guidelines for Conducting Promotions

Legal Requirements

• Conduct social media contests and sweepstakes (promotions) to comply with the same promotion laws that apply to traditional media.
• Have a free method of entry for sweepstakes that is:
  • disclosed clearly and conspicuously; and
  • treated equally with the purchase option.
• Select contest winners based on skill ensuring, for example:
  • there is no random drawing to break a tie; and
  • qualified judges make the selection.
• Remember that a promotion conducted on social media can trigger application of the Endorsement Guides. If asking consumers to promote the company’s products, services, or brands on social media in exchange for the chance to win a prize:
  • require, in both the official rules and any call-to-action, that entrants disclose the fact that the entrant’s post is an entry into a contest or sweepstakes; and
  • disqualify any entry post that fails to include a clear and conspicuous disclosure that the consumer received an entry in a promotion in exchange for the post.

Social Media Platform Promotion Guidelines

• Follow the promotion guidelines of every social media platform on which the promotion is running.
• Comply with the platform’s general guidelines and policies, including its:
  • privacy policy;
  • terms of service; and
  • community guidelines.
• Check the platform’s guidelines before running each new promotion as platforms change their guidelines often.
• Include in the promotion’s official rules that:
  • each participant releases the social media platform from liability for the promotion; and
  • the platform is not a sponsor or endorser of or affiliated with the promotion (unless otherwise agreed with platform).

Facebook

• Administer the promotion:
  • within an app; or
  • on Pages, Groups, and Events.
• Use a permitted method of collecting entries, such as having users:
  • post on the page;
  • comment or like a page post;
  • message the page; or
  • like a post as a voting mechanism.
• Do not use Personal Timelines and friend connections to administer promotions using phrases such as:
  • “share on your Timeline to enter”;
  • “share on your friend’s Timeline to get additional entries”; or
  • “tag your friends in this post to enter.”

(See Facebook for Business: News: It’s Now Easier to Administer Promotions on Facebook and Facebook: Pages, Groups and Events Policies.)

Instagram

• Do not inaccurately tag content.
• Do not encourage users to inaccurately tag content, such as encouraging participants to tag themselves in a photo that they are not in.

(See Instagram: Promotion Guidelines.)

Twitter

• Ask participants to mention the company conducting the promotion in their updates to ensure that the company sees all promotion entries.
• Discourage participants from creating multiple accounts and include a rule stating that a participant will be disqualified for using multiple accounts to enter.
• Discourage participants from posting the same tweet repeatedly, for example, by:
  • not conducting promotions to see who can tweet or retweet the most messages; and
  • stating that multiple entries in a single day will not be accepted.
• If the promotion requires participants to include a certain hashtag in their tweets, require hashtag topics to be relevant to the tweet.
• If requiring participants to include a hashtag with their entry (such as, #contest),
  • make the hashtag topic relevant to the promotion; and
  • do not encourage participants to add a hashtag to tweets unrelated to the promotion.

(See Twitter: Guidelines for Promotions on Twitter.)

Pinterest

• Do not require participants to Pin a specific image.
• Do not allow more than one entry per participant.
• Encourage authentic user behavior.
• Keep Pinterest spam-free.
• Make sure entrants use the word “contest” or “sweepstakes” in their descriptions or images when they save Pins for the promotion.

(See Pinterest: Community Guidelines and Pinterest: Advertising Guidelines.)

YouTube

• Conduct the promotion through the company’s content on the YouTube platform, not through an ad unit.
• Do not encourage users to infringe third-party rights or engage in unlawful activity.
• Do not charge users a fee to enter the promotion.
• Do not, and do not have a third party, manipulate YouTube metrics, including numbers of views, likes, dislikes, or subscribers so that those metrics fail to reflect genuine user engagement with the YouTube Service.
• Do not ask users to give all rights in, or transfer the ownership of, their entries to the company.
• Do not associate or affiliate YouTube with the promotion without YouTube’s prior written consent.
• Ensure that the promotion’s official rules include:
  • links to YouTube’s community guidelines and indicate that noncompliant entries will be disqualified; and
  • a legally compliant privacy notice that explains how the company will use any personal data it collects for the promotion and how the company will adhere to that use.

(See YouTube: YouTube’s Contest Policies and Guidelines.)

Snapchat

• Make it easy for participants to get involved by using clear and simple instructions.
• Clarify through the presentation of the promotion that Snap Inc. has no affiliation with the promotion.
• Do not:
  • use any of Snap Inc.’s products’ or services’ names, trademarks, logos, or other intellectual property except as necessary to comply with its promotion rules;
  • encourage illegal or illicit behavior;
  • encourage spamming, such as asking participants to send Snaps to friends; or
  • encourage participants to violate Snap Inc.’s terms of service, community guidelines, or privacy policy.

(See Snapchat: Promotions Rules.)

Avoid Liability for Consumer Involvement in Promotions on Social Media Platforms

User-Generated Content

• When planning a promotion that involves user-generated content (UGC):
  • carefully consider what consumers are being asked to submit;
  • warn consumers against submitting various types of problematic content, such as content that infringes a third party’s intellectual property rights;
  • set up a process to comply with the safe harbor requirements under applicable laws;
  • consider what rights to use the UGC, if any, the company may want after the promotion; and
  • remember that some platforms, like YouTube, prohibit the assignment of ownership of a submission as a condition of entering a promotion.
• If UGC is to be posted on a company’s social media page, protect against claims of copyright infringement by taking steps necessary to obtain safe harbor protection under the Digital Millennium Copyright Act (DMCA). For example:
  • post a takedown policy;
  • register a designated agent with the Copyright Office to receive takedown notices; and
  • promptly take down the materials identified in a takedown notice.
• If a company wants to use any UGC submissions after the promotion, whether in the same social media platform or any other media, carefully consider whether it has all of the necessary rights to do so, including:
  • permission from the submitter;
  • a release from all identifiable persons in a photo;
  • substantiation for any product claims; and
  • a license to use any featured music or other third-party rights in the submission.

Consumer Voting

• Place limits on public voting to determine contest winners by:
  • limiting the number of times a person can vote and enforcing that limit; and
  • having technology in place to help detect computer programs and hackers that circumvent voting limits.
• Have qualified judges make the final decision on the winner or at least include an element of internal judging so that the company can maintain some level of control over the selection of winners.
• Have a plan in place if consumers hijack the promotion, for example, if a consumer rallies others to vote for the least desirable entry.

Remember That Intellectual Property Laws Apply to Social Media

• Comply with intellectual property, right of privacy, and right of publicity laws on social media just as with traditional media.
• Remember that a company’s use of third-party tweets, photos, and posts will be seen as commercial use, not as personal use.
• To avoid right of publicity and privacy issues, do not, without permission:
  • use a celebrity’s name or likeness in any social media posts;
  • tweet at a celebrity, unless the celebrity first directly tweeted at the company;
  • retweet a celebrity tweet; or
  • post a photograph of a celebrity or any other identifiable person on Instagram, Snapchat, or any other social media platform.
• To avoid copyright issues:
  • do not assume that photographs on Pinterest, Instagram, and other social media platforms are in the public domain;
  • secure necessary permissions to use third-party photographs, quotes, excerpts, audiovisual clips, and other copyrightable materials; and
  • obtain all necessary rights to use music included in any audiovisual posts.
• If the company does not have a promotional agreement with a trending event or organization, to avoid trademark and false endorsement issues, do not:
  • imply connections with any sporting event, like the Super Bowl or the Olympics, on social media;
  • imply connections with any entertainment event, like the Academy Awards, on social media; and
  • use any of the organizations’ or events’ logos or trademarks in a social media post.
• To avoid other trademark issues:
  • do not use third-party trademarks as hashtags;
  • check UGC for third-party trademarks before it is posted; and
  • use caution if using a third-party trademark as a metatag or for a keyword search.