Chapter 5
The Fine Print: Legal and Other Considerations
In This Chapter
Finding the fine print
Complying with the Federal Trade Commission
Posting content for regulated industries
Remember when you signed up for Facebook, and you selected the check box agreeing to Facebook Terms and Policies? You sat down and read all that fine print right then and there before agreeing, right? Surrre, you did. As most of us do, you probably just clicked OK or Agree or whatever you needed to do to get into the site as quickly as possible.
The good news is that the Facebook Terms and Policies are fairly manageable, with no online bullying, no virus uploading, and no general law-breaking. But don’t overlook point 1 in the Safety section:
You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.
That’s vague at best. Allow us to explain a bit better in this chapter, with some guidelines for staying on the right side of Facebook — and U.S. federal law — as you embark on your Facebook marketing endeavors.
Digesting Legal Considerations
The first step in figuring out the legal considerations is finding them! The main site for the Facebook Terms and Policies is www.facebook.com/policies. Within this page, you can find links to many other lists of terms and policies, such as Ads and Sponsored Stories, Pages, Promotions, and Platform Policies (for Developers).
Facebook does monitor these Terms and Policies although not always thoroughly, because after all, it can’t be everywhere at once. And yes, Facebook will indeed disable your account if you violate these terms.
We’ve frequently seen enforcement against spam. You may (or may not) know, however, that you can send messages to people who aren’t your Friends. This ability is helpful sometimes, say when you need to get a private message to someone who likes your Page but who isn’t a personal Facebook Friend. The problem with sending messages to people who aren’t your Friends on Facebook is that you don’t know “how much” is “too much.” Facebook doesn’t specify how many messages you can send without getting banned. Typically, you aren’t going to be sending many messages to people you aren’t Friends with, so you should be riding on the right side of Facebook law.
If you go to the Profiles of people you aren’t Friends with, you see a Message button if they’ve allowed people who aren’t their Friends to message them. If you click the button, you can send a message even though you aren’t Friends with that person. In Figure 5-1, you see a profile of someone named Molly, and you can see that we’re not Friends with Molly. We can’t see some of her personal information — but we can send her a message.
Figure 5-1: Send a private message from your personal account.
If you send a message to too many people you don’t know, though — especially if the message contains a link to a website — you’ll get a warning from Facebook. If you continue sending messages like this, your account will be disabled. Not good. So the message (ha!) here is that you can send messages to people you don’t know — just don’t send too many simultaneously. We recommend sending ten or fewer messages a week to people you don’t know if you need to contact people you aren’t Friends with on Facebook.
Another important aspect of sending messages to people you don’t know is that your message typically ends up in the Other folder of the Facebook Messages area. Most people don’t check this folder regularly, if at all. Facebook sometimes gives you the option to pay $1 to get the message into the main Inbox, but not with every message.
You can’t send any Facebook messages actively as your Facebook Page. You can respond to Facebook messages that come into your Page only if you have the Message button activated. (See Book II, Chapter 3 for more information on the Message button.) You can send Facebook messages only through your personal Profile, in any case — to Friends or non-Friends.
Pages have also been shut down for violating the Promotions Policies. So, if you’re going to run a contest or sweepstakes, or have some type of promotion on your Facebook Page, make sure you read through the Promotion Policies. The one that gets violated the most is the first one listed in the Promotions section: Promotions on Facebook must be administered within apps on Facebook.com, either on a Canvas Page or a Page app. See Book VI for more information on running a Facebook contest the right way.
You are also responsible for following the applicable local laws for running a contest in your geographic region. Consult with a lawyer if you have questions about running your promotion or contest.
The Facebook Advertising Guidelines are fairly extensive, and we recommend reviewing them before you run an ad (www.facebook.com/ad_guidelines.php). Although you won’t violate any laws and your Page won’t be shut down if you go against these guidelines, you will save yourself some time by starting your ad the right way.
Understanding U.S. Regulations on Testimonials and Reviews
Businesses often use their Facebook Pages to sell their own products or possibly to market other people’s products and get a commission on the sale of those products. Using testimonials and reviews can help sales because people like to see social proof of a product: That is, if one person likes it or gets good results, maybe you will, too. Testimonials and reviews are good marketing tools. But you do need to be aware of some of the Federal Trade Commission (FTC) regulations concerning reviews and testimonials if you intend to use them in your marketing efforts. The FTC’s job is to protect consumers from fraudulent business practices and general marketing sliminess.
In October 2009, the FTC released updated guidelines for how advertisers are allowed to show testimonials and reviews. You can find the regulations here:
This document gives examples that can help you decide how to phrase any testimonials or advertisements you may put on your website or on social media.
One of the big unknowns in all these regulations is how they’ll be enforced. The FTC can’t monitor every Facebook Page, website, and e-mail sent out, of course. But as with every rule, law, or terms set forth by a governing body, it’s best to try to comply from the beginning. All it takes is one disgruntled customer to bring infractions to light. You don’t want to end up with some hefty fines from the FTC.
The first change that may affect you is the disclosure of material connections between you and a company whose product you’re promoting. If you’re familiar with affiliate marketing, this change can affect what you might post on your Page. In affiliate marketing, a business compensates someone for sales brought in by that person’s marketing efforts. The person promoting the company’s products is typically compensated with a percentage of each sale, like a commission. Many companies, including Amazon, have affiliate programs to encourage sales through this independent sales force.
But the FTC guidelines, noted here, state that you need to disclose a material connection between you and a business that may compensate you for promoting its product:
- 255.1 Consumer endorsements
- (d) Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Endorsers also may be liable for statements made in the course of their endorsements.
Many people comply with this regulation by stating that the link is an “affiliate link” when they promote a product or program. This practice is compliant with the FTC guideline. An example is shown in Figure 5-2.
Here’s another way to be compliant: Post an explanation of the product being promoted, as well as a link to a site where someone could buy the product, and make a statement such as, “This is an affiliate link, but I don’t promote anything I don’t believe in wholeheartedly.” (Grandma Mary states her case in her own unique way in Figure 5-2.)
Figure 5-2: Promoting affiliate links to products.
Your audience will understand that sometimes you bring them products that fit their needs, much as you do your own products. As long as you aren’t continually selling to them, they don’t mind. Some people disclose that a link they’re posting isn’t an affiliate link, so that it’s clear that they aren’t making any money by promoting this product.
Many people “endorse” a product with which they’re affiliated. Be careful what you say about a product as you post about it.
- 255.2 Consumer endorsements
- (b) An advertisement containing an endorsement relating the experience of one or more consumers on a central or key attribute of the product or service will likely be interpreted as representing the endorser’s experience is representative of what consumers will generally achieve with the advertised product or service in actual, albeit variable, conditions of use. Therefore, an advertiser should possess and rely upon adequate substantiation for this representation. If the advertiser does not have substantiation that the endorser’s experience is representative of what consumers will generally achieve, the advertisement should clearly and conspicuously disclose the generally expected performance in the depicted circumstances, and the advertiser must possess and rely on adequate substantiation for that representation.
This means that you need to be careful about making claims relating to your product. If you have a weight-loss or health product, you can no longer say something like this: “Tim lost 100 pounds in his first 2 weeks with our product. Results not typical.” Even if this claim were true, the FTC would like a clearer representation of expectations for your product. The reasoning is that consumers tend to ignore the “Results not typical” warning, and the FTC’s job is to protect consumers. A good addition to the preceding statement would be something like this: “Typically, our clients lose an average of x pounds over x time.”
Meeting Content Compliance for Certain Industries
Certain industries have more regulations than others regarding what they can share online. Some industries follow specific regulations outlined by law, and other companies follow self-created policies relating to social media and online activities.
If you’re in one of the following industries, you have some form of guidelines relating to online activity:
- Finance (investments, mortgage lending, banking, and so on): Any financial institution needs to be cautious about what information it shares. Financial institutions are expected to keep records of customer communications, which could include online social media communications, and they need to be concerned about sensitive customer-confidentiality issues when interacting with clients.
- Insurance: Insurance agents are allowed to give advice only to people in the state in which they’re licensed. This can pose a problem on a Page used by people from other states because you can restrict who likes your page by country, but not by state. If you’re an insurance agent, make sure that your posts avoid giving straight insurance advice.
- Public companies: Publicly traded companies need to be cautious about making any forward-looking statements. The Regulations Fair Disclosure policy, introduced in 2000, states that all publicly traded companies must release information to investors and the public at the same time. If this policy isn’t followed, insider-trading or selective-disclosure charges could be filed.
- Pharmaceuticals: Pharmaceutical companies need to worry about claims being made online and also about outlining adverse effects of their products. This restriction could include any statements made within the company’s Facebook community itself.
- Health care: Health care industries have to be careful about patient confidentiality, which includes the fact that a patient/doctor relationship exists. They also have to beware of giving medical advice. Figure 5-3 shows a Page of Dr. Karen Becker, who is a veterinarian. Her About page clearly states that she can’t give out advice. We recommend that you make a similar statement or include a link to your disclaimer on your website.
Figure 5-3: In your About area, say outright if you can’t give specific advice.
If you’re in one of these industries, you’re probably aware of regulations and guidelines already set forth by the governing bodies related to your industry. This section is just a gentle reminder to be aware of your Facebook posts, tweets, and comments on the web.
Bottom line: You can still have a Facebook Page to connect to your community, but you may have to keep your posts slightly more social. You can post about things you are doing in the community and things that are happening in the office, ask fun questions, and do other things to promote your business in a general way.