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As you’ve no doubt read, the FTC has increased its scrutiny of social media influence. Above and beyond what the FTC requires as the minimums for disclosure, what else do you need to consider?

The litmus test you should apply to yourself for disclosure is this: what makes you change your speech?

For example, as stated in my disclosures, I am an investor who holds various stocks and mutual funds. If you’re an investor who has holdings that affect how you talk about companies in your investments, and you give even a passing thought to whether your words will potentially affect the financial performance of your investments, you need to disclose.

I work for a public relations firm, SHIFT Communications. As such, not only does my speech change when referencing my employer, but my speech changes when referencing my employer’s customers. I am naturally less likely to say something negative about a client than if I had no relationship at all. Thus, by the litmus test above, I need to disclose when I speak about both my employer and its clients. You may be in the same boat.

In both cases above, my speech has changed. The FTC’s disclosure guidelines center around endorsement, around the act of saying something positive and promotional about a company. If you go by the test of whether your speech changes, disclosure also includes the negative, what you don’t say. If you would ordinarily complain about a customer service experience you had, but you don’t because the company is a financial holding or a customer, then you’ve changed your speech. That change is a clear sign that in any environment in which you invoke your influence, any mention of that company requires disclosure.

These guidelines also impact more than just direct social posts. Today, everything is social. Everything is mobile. The slide deck you’re showing at a conference? That will end up on the Internet. The talk you’re giving? That will end up on the Internet. The conversation you’re having behind closed doors? Ask any politician who has had their secret conversations outed – it will end up on the Internet. If you are influential in any sphere – not just social media – disclosure is necessary any time you do something which will end up on the Internet.

What changes your speech? What makes you consider saying something a different way? That’s a clear sign for disclosure.

Disclosure: I am not a lawyer. The above does not constitute legal advice. If you want legal advice, hire a lawyer.


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