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The importance of promoting brands and products on digital platforms has continued to grow as advertisers are learning how to use social media to reach out to specific populations by harnessing the power and goodwill of the people on these platforms that are popular with and influence particular niche groups of interest. These so-called “influencers” can have thousands, or even millions and tens of millions of followers, and be popular both broadly and within a segment such as C++ software engineers. These influencers might organically discuss a product or brand if they like it, but advertisers may also seek them out to leverage their social media presence (on Facebook, Instagram, Snapchat, etc.) to endorse or promote a product for some form of consideration. Therein lies the issue: When is the influencer an objective critic, and when is she a paid spokesperson? Obviously, the consumer will weigh the credibility, objectivity and veracity of the two types of speech differently, as they would treat the distinction between any other types of commercial and editorial speech. Only here, unlike on TV, it is more difficult to tell commercial verses editorial messages apart.

This article appeared in Internet Law & Strategy, an ALM publication delivering news, advice and analysis to Internet Law Practitioners, Technology Practitioners, Chief Technology Officers, Corporate Counsel, In-House Counsel, Litigators. Visit the website to learn more.

‘Material Connection’ Enter the Federal Trade Commission (FTC), which has now for years consistently warned advertisers, brands and influencers about the need for adequate disclosures when there is a “material connection.” See, “Do Tell,” Los Angeles Lawyer Magazine (May 2017, p. 28). A material connection is a connection that might affect the weight or credibility that consumers give an endorsement, and can be a business or family relationship, monetary payment, or the gift of a free product. However, despite the increase in social media endorsements and clear material connections to products and brands, advertisers, brands and social media influencers have failed to strictly adhere to the FTC’s disclosure requirements and repeated warnings. Based on this lack of compliance, the FTC has recently ramped up its enforcement actions to ensure such endorsements adequately comply with FTC regulations and to warn advertisers, brands and influencers to take heed.

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