The litmus test for influencer disclosure

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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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2 responses to “The litmus test for influencer disclosure”

  1. Great post Chris. I’m amazed by how many influencers on all types of social media do not disclose. I’ve also been through this with our corporate lawyers on exactly how (copy, frequency, platform) to disclose influencer marketing. It’s not always easy in 140 characters but it’s important to maintain brand integrity and protect against community backlash and potential litigation.

  2. Disclosure issues are certainly important, but I think your definition may be overly broad. All sorts of things cause us to adjust how we speak.

    Just look at fans of various technology companies. Must I disclose that I wrote that I liked the iPad because I have always preferred Apple products? Do I really need to disclose that I own Apple stock if it is a small investment and my words are unlikely to have any material impact on the stock’s price? If I’m pitching Apple, do I need to disclose that when writing about the Microsoft Surface? What if I’d like to have Apple as a client but haven’t even gotten to the pitching stage? If I had a bad experience with my iPhone, do I need to mention that when I review the latest Samsung Galaxy? Or what if Apple was a client of my former agency, and I didn’t like working on the account?

    All of these things might have some impact on what I write, but so do all of my life experiences.

    Disclosure is hard because figuring out where to draw the line is a challenge. I agree with erring on the side of disclosure — or avoiding writing/speaking about the topic — but I also think that concerns about disclosure can be overblown.

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