Daliah Saper’s presentation on FTC Guidelines affecting bloggers is featured in the Publicity Club of Chicago Newsletter

By Sue Masaracchia-Roberts

Just as every media outlet is subject to federal oversight, it should come as no surprise to PR pros that social media is increasingly drawing the attention of the federal government. During a packed PCC luncheon in October, a panel of experts weighed in on the ramifications of a new FTC ruling that holds bloggers up to the same standards as traditional journalists when it comes to transparency.  In fact, there are even possible punishments for the blogger and a PR organization and its client if it is not divulged that a rave review for a product resulted from a free sample.

Moderated by Paul Rand, president of Zocalo Group and president elect of the Word of Mouth Marketing Association (WOMMA), the All Star panel consisted of Daliah Saper, principal attorney at Saper Law; Tourre Muhammad, creative strategist at Bean Soup Times; and Esther Cepeda, blogger and columnist for the Chicago Sun-Times and The Huffington Post.

Paul Rand (prand@zocalogroup.com)

Not only does Paul Rand have the responsibility for overall client strategy and satisfaction, but also for leadership and team growth for the Zocalo Group. Prior to launching this firm, Rand was a partner and global chief development and innovation officer at Ketchum and was a member of their global technology practice. Today, he also serves as President elect of the Word of Mouth Marketing Association (WOMMA) and as President/CEO of Zocalo Group.

According to Rand, the most popular bloggers act as opinion leaders, but with that responsibility comes new scrutiny by the Federal Trade Commission (FTC), which is concerned that some bloggers may not be disclosing their ties to the corporations or organizations they write about. He proposed that public relations professionals should walk a fine ethical line in their dealings with bloggers and why, legally, bloggers are not journalists.  This requires an extra measure of skepticism by PR pros.

Rand said, “It is the responsibility of those of us on the marketing side to keep an eye out. If you are sending out information I gave you, please tell people that I gave it to you. Make sure those with whom you share the information with will disclose where they got it.  If they don’t, you need to let them know that you will take them off your media list.”

Esther Cepeda (eejaycee@600words.com)

With a diverse background in journalism, education and marketing, Esther Cepeda holds an esteemed role in the Hispanic community as the first Latino metro columnist – covering news, sports and politics, and serving as the chief marketing officer for the Illinois Student Assistance Commission. She also writes the 600 Words column (www.600words.com) distributed nationally through NewsTex, and blogs for The Huffington Post. She is a frequent radio and television contributor both locally and nationally to local news outlets, including Fox News, The O’Reilly Factor, CNN Headline News, Chicago Public Radio and Telemundo, among others. Cepeda is also a guest op-ed columnist for newspapers nationally, including the Sacramento Bee, Orlando Sentinel and the Chicago Tribune.

Consumer protection laws are meant to be good for all; not all claims by those doing marketing are true, Cepeda suggested.  She contends that most bloggers are honest and like to be transparent regarding who they are and the relationships they have.  Disclosure is key. For example, if a “blogger reveals he got a coupon for free ice cream, you can let the consumer determine how reliable a source you are [about ice cream] by explaining how he got the product. It’s up to consumers to get all the facts.”

She proceeded to differentiate between traditional journalists and bloggers, explaining that journalists are bound by facts. As an example, she mentioned the Tribune’s Ellen Warren being a reporter who also blogs. As a reporter, she gets paid to analyze a product but is not using this product as income to keep herself going. As a blogger, she can just use a product and write about it. Cepeda’s advice is to follow bloggers, get to know them and understand the relationship they have with the topics they write about.

“Some blog only for the passion they have for consumer issues,” said Cepeda. “You need to learn the players, understand what they are about, and then maintain a relationship with them if you choose. Not all bloggers are alike.”

Cepeda explained that, on the Web, it is all about the page. If someone is going to disclose information but has worked for an organization linked to that information, “you need to state openly, simply and clearly why you have an opinion in the body text of your article, especially if you are the caretaker of a brand.”

She added that, in the event negative comments are made in response to blogs, a company president should come forward and honestly respond to these comments or suggest discussing them offline or via e-mail. There are tools available. “They can be burdensome,” she added, “but help us manage our messages.”

In creating a blog, Cepeda suggested creating terms of agreement for users, called “communications decency shields.” These tools offer terms of use, can shield users from online fights, and the ability to remove terms of agreement violators – rather than alter their [inappropriate] messages.

She added, “The spirit of blogging is to be transparent, be upfront. People appreciate honesty.”

Toure Muhammad (toure@beansoupties.com)

Creative strategist for Bean Soup Times, a multimedia outlet where humor, politics and culture meet, Toure Muhammad once served as communications director and press secretary for Congressman Bobby Rush and has had articles appear in the New York Times, Wall Street Journal and International Herald-Tribune. A journalist, comedian, online marketer and public relations specialist, he likes to combine PR with activism.

He maintains that transparency is necessary across the board in order to influence how people think. Not everyone is discerning. Bloggers need to be honest and upfront.

With the birth of blogging, some felt a lack of trust. “If you get something for free and it influences your opinion,” Muhammad said, “you need to let your audience know so they can make up their own minds.  If you look at media in print publications, the publisher is both a journalist and an advertising representative. How do you cross the lines? Bloggers are like small publishers.”

However, Muhammad added that blogging can become unfair. “In traditional PR, once you give [information] to a reporter, you lose control. If the reporter is connected to a legitimate outlet, he has a responsibility that bloggers don’t have,” he said.

As far as public relations, Muhammad said that blogging can be an economical addition to the PR mix, along with e-mail and other social media, suggesting, for example, that new products can be tested using groups from Facebook. “More than 20 responses is a valid sampling,” he said.

Daliah Saper (admin@saperlaw.com)

As a litigator, Daliah Saper handles cases involving intellectual property like trademark and copyright infringement, trade secret misappropriation, defamation, and commercial disputes.  A large part of her practice, Saper Law, centers on the legal implications of using social media. As a member of the Illinois Bar and Trial Bar of the US District Court, Saper has handled a number of high profile cases, has won a number of awards, has been popular lecturer and panelist, and has worked at Playboy Enterprises, Inc., on their maintenance and enforcement of their global trademark portfolio. She also has worked for Lawyers for the Creative Arts and the Anti-Defamation League.

Traditional law now has new applications with the advent of social media. To address these, the FTC has incorporated additional guidelines.  These guidelines regulate trade – including labeling, advertising, endorsements, fair reporting, etc. – often include rules not touched on in a long time. The focus is on endorsements and testimonials, nonofficial commentaries that my not be accurate.  The guidelines said Saper, sound great but are often challenged in the name of free speech. What needs to be defined is, ‘what IS an endorsement?’

Citing these FTC guidelines regarding defining endorsements, she said they include, “any advertising message (including verbal statements, demonstrations or depictions of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.”

As an example, Saper talked about ‘Mommy bloggers’ and how they are sometimes bound to endorse products they write about. “It is the liability of the advertiser making claims when a statement is not what is claimed; the messages that go out must be the right ones,” she said. To do this, she quoted the FTC guideline, saying that the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated, adding that these bloggers should be monitored to ensure no deceptive practices are being used. (Additional information and examples pertaining to the FTC rules can be found at www.ftc.gov/opa/2009/10/endortest.shtm.)

Some simple cautionary guidelines should be followed when using social media and blogging. These include:

• Do not write falsehoods as these can be consider slander.
• If one’s employer has a Facebook account, an individual having an account can be considered biased about that employer in comments made.
• Each person owns a personal brand on himself.
• As with any business, all relationships with that business are owned by that business. As an example, if using Salesforce.com, all data in the database belongs to the company licensing it.
• At the moment, there is a question as to ownership of contacts if someone leaves LinkedIn. Be aware of this.
• If you are writing for a company, you cannot also be a ghost writer.

However, the FTC guidelines do not change actual practices. There are many different ways to get into trouble, she said.

“There seems to be a disconnect between legal and marketing departments,” said Saper. “There have been some verifiable marketing infringements and enforcements of violations. For example, there was a mommy blogger’s baby video of a kid dancing to Prince. Prince sued but she wouldn’t take it down. Prince lost due to the negative PR he received as a result of the lawsuit.”

She added this example: “If a pill promises weight loss but does not result in a 10 pound loss in a day, no disclaimer was needed,” said Saper. “If someone has to starve himself along with taking that pill to get the promised weight loss promised, the product should have a disclaimer. The guidelines have been created for the protection of less discerning consumers.”

If a crisis is involved, a “different hat must be worn,” she said. In these instances there is a choice to make. The choices are to ignore the situation/comment, to respond publicly or to take legal action.” She warns, though, “The latter can be a very long process.”