Is Instagram FTC Compliant?

12.18.12

Effective January 16, 2013 Instagram will have a new user agreement. The Terms of Use are changing in a predicatable manner, it’s a free service and I assume from the update that they’re going to start adding inline advertising. My question is, “Is Instagram FTC compliant?”

I’m sure Instagram has a massive legal team now that they’re owned by Facebook but parts of their Terms of Use make me wonder what sort of digital citizens they’re in search of. Let me take you through the process of signing up for Instagram.

sign up for instagram

First you tap to register

Next you enter an email address

Next you add an email address. Since you need to be 13 to use the service I’m assuming they rely on outlook.com, gmail and yahoo to verify the ages, right? Oh wait….

make up any email address for instagram

And just like that Young_Child is a registered Instagram user.

The fact of the matter is that you’ll need a smartphone to enjoy instagram with friends so parents don’t really need to worry about it. Oh, wait… did you just get your kid an itouch? Nevermind.

Anyhow, I’m not going to get all screechy and say “The Children The Children” but then I remembered they’re my kids and it’s my job to keep them safe. I am going to get a little screechy about the fact that Instagram is allowing children from 13-17 who are not old enough to enter into a contract to digitally agree to a contract on behalf of me.

And you’re like… huh? That makes no sense.

Instagram allows users 13-17 to use their service. The updated terms of use states:

instagram asks teens for contracts

In case you can’t see the image it states:

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.

Since when do we have children entering into contracts (because that’s what this is) with verbiage that in it’s essence says, “I promise to have my mom check it”.

Because I’m a blogger I obviously have major issues with Instagram using my images for sponsored content without any sort of revenue share. I won’t be on Instagram as of January 16 if they don’t reverse that. The good news is that folks are flocking back to Flickr and I’ll connect with them there.

So it’s crummy that Instagram doesn’t do anything to keep kids under 13 off their service. Since the audience is allegedly all over the age of 13 they don’t have to be COPPA compliant and that does make it easier to run a business. The bummer in all of this comes in section 3 of Instagram’s new Terms of Use.

instagram tricks kids

Yes, that reads: You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

This sucks if you’re a parent. Don’t trick my kids. I’ll send them to SnapChat.

Instagram is a microblogging photo service. That makes Instagram users bloggers. (Are you with me so far?) Instagram now owns rights to the blog content right? Well, they own the ad dollars. This is from the FTC:

The recent creation of consumer-generated media means that in many instances, endorsements are now disseminated by the endorser, rather than by the sponsoring advertiser. In these contexts, the Commission believes that the endorser is the party primarily responsible for disclosing material connections with the advertiser. However, advertisers who sponsor these endorsers (either by providing free products – directly or through a middleman – or otherwise) in order to generate positive word of mouth and spur sales should establish procedures to advise endorsers that they should make the necessary disclosures and to monitor the conduct of those endorsers.

I could parse the entire 20 page document that discusses the FTC Guidelines for endorsements but I think y’all get the gist of it. The FTC is calling for disclosure.

If I was selling Elf on the Shelf (what IS that thing anyhow?) I’d be advertising all over Bobbie’s Instagram Stream.

elf of the shelf on instagram

 

I’m not leaving Instagram yet because I cannot comprehend how a legal team would come up with this set of terms. In the interim Enrique has a great workaround.

Enrique Guitierrez on Instagram

And Ciaran reminded me that you can always use Instagram in airplane mode, get the benefits of the filters and then just have the images on your phone for your personal use.

Will you still be on Instagram during the second half of January?

UPDATE: The instagram blog has been updated and includes the following:

Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.

And

Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.

Does this change things for you?

Discount Stores Don’t Need Discount Public Relations

04.29.10

Blogging isn’t just for nerds anymore. Blogging is simple, and it’s as close to free as anything ever will be. You can go to a public library and set up a blog using any number of different free services. There is a low threshold for entry into blogging. Anyone can do it.

I remember watching Arianna Huffington hit every talk show when the book her editors she wrote was released and she kept saying, “everyone should have a blog. Everyone has the ability to have a great blog.” Well, no, that’s not quite true. Not everyone writes well, not everyone can create concise posts about interesting topics, not everyone can code. Not every blog is good. Not every person should be a blogger.

The web offers us a false sense of parity. Sure, anyone can start a site, but unicorns and sparkles won’t make you the next BlogHer any more than talking about tech will make you the next Mashable. I know second grade was amazing, but by the time you got to third, there were grades, and not everyone got A’s. This morning, when I pointed out that a campaign (which has yet to launch) is a train wreck in the making, I was told, “Well we are trying. Everyone starts somewhere.”

That’s not good enough.

Last year I stood on stage at the 140 Conference and reminded people that if they wanted good publicity they should hire a publicist. Today I would emphasize that even more. The FTC created some guidelines around blogging and partnerships that ought to be heeded, not because it’s the FTC, but because these guidelines will save you from looking like more of a shill.

Here’s the quick version of things, since I know y’all are going to want a blow by blow account.

  • I checked in at ShePosts (as I do every morning) and saw that Sears Outlets were looking for bloggers
  • I noticed that some bloggers had even offered to put signs on their front lawn, for free
  • I filled out the application and took some screenshots.
  • Almost fell over when I read: You CAN give and post negative feedback on Sears Outlet. All we ask is that you allow us the opportunity to correct it if possible first.
  • Followed by: And yes, you must abide by FTC laws on disclosures.

I’m not the only person who sees problems, yet there are so many here that I don’t know where to begin, so I’ll start in the middle.

If you want publicity hire a publicist. A call for applicants should not be a blog post, complete with comments, grammatical errors, misspellings and periwinkle blue links. A call for applicants should be your finest moment, it ought to be fully polished, readable, quotable and enticing. In theory you want to attract bright people. Bright people will not be attracted to a messy site.

If you’ve already decided that you’re going to use a blog post to attract applicants, let’s look at the content of the post. The FTC does not (nor will they ever) make laws. The FTC creates guidelines, lawmakers make laws. The FTC may fine people, based on the guidelines, they investigated Ann Taylor recently, but nothing happened. If you are going to worry about the FTC and their guidelines the best thing you can do is read them.

Now, let’s assume that you don’t much care what the FTC says, and you also don’t care about the quality of the work that a “Public Relations Firm” puts out on your behalf. Assuming all of that, please tell me who is going to trust anyone who signs up for this? What about this is trustworthy? Negative reviews have to be submitted to the PR firm first? I have never seen anything like that before, and certainly hope to never see it again.

I won’t even talk about taxes. These women, these poor gullible women will have to pay taxes on items they may or may not actually want or need. There’s nothing quite as lovely as picking up the tab for your local megastore.

I understand that the PR firm behind this is a new one, and it seems as though they may be a pro bono one as well. I can tell you this; I have many friends who are PR Pros and everything about this made them cringe.

Once again a discount store has made the mistake of trying a discount marketing campaign. In some ways it doesn’t really matter who it is, or why they did it, the takeaway should be hire a real agency.

Tech Talk Tuesday: Kim Kardashian Stole My Brilliant Idea

12.29.09

Typically I wouldn’t have much to say about Kim Kardashian. She operates in a realm separate from mine. Today, however, I’d like to talk a little bit about Kim Kardashian and the FTC (Federal Trade Commission).

According to Ad Week, Kardashian has signed a deal to “sex up” Carls Jr. Well, I guess after the Paris Hilton video, we can expect Carls’ Jr. to hire every celebutard with a sex tape hot young girl out of Hollywood?

Here’s what’s interesting. The Kardashian girls were recently on Howard Stern talking about making $40,000 to show up at a nightclub. Forgive me if I don’t recall who was speaking, I was busy making mental notes on how to not behave in public. Ad.ly is a great little company, and they list a tweet with Kardashian (of sex tape and reality tee vee fame) as having a $10,000 value.

What was this?

Is it a sponsored post? Is this a part of the deal she recently inked with Carl’s Jr?

Maybe she legitimately is excited to eat a salad. Kim looks like the kind of girl I often see in fast food restaurants, right? Oh, no, you’re right, it’s totally out of character.

According to the FTC, the fine is $11,000. If Kim Kardashian made $10,000 for this tweet, pays $11,000 in fines and gets her name absolutely everywhere again for just $1,000 I’m going to be green with envy.

Seriously folks, my secret hope and prayer was that I’d be the first blogger to get hit with an $11,000 non disclosure fine. Why? Because I always disclose and I would have welcomed the inquiry. I could’ve had the ass kickiest lawyers you know defending me for free and our names would have been in every paper.

I could’ve renamed my blog Jessica Smartypants Gottlieb.

Although I’m very interested in seeing how this pans out, I’m even more curious who the 2.7 million people are who follow Ms. Kardashian on twitter.

Before the FTC guidelines were released I wrote about disclosure, and here I warn you a little bit about people like The Kardashians.  Make no mistake, every part of their lives is sponsored, and I do think that disclosure will be difficult for them, but the good news is that they make more than enough money to pay any fine with great ease.

Bloggers The FTC And Disclosure: The Sky Is Not Falling

10.6.09

The new FTC regulations are a great big yawn. There’s nothing particularly new since 1980 except that advertising is now online as well.

Rather than screaming that that sky is falling, why not read the guidelines here.

Here are a few highlights:

The Commission does not believe that all uses of new consumer-generated media to
discuss product attributes or consumer experiences should be deemed “endorsements” within the
meaning of the Guides. Rather, in analyzing statements made via these new media, the
fundamental question is whether, viewed objectively, the relationship between the advertiser and
the speaker is such that the speaker’s statement can be considered “sponsored” by the advertiser
and therefore an “advertising message.” In other words, in disseminating positive statements
about a product or service, is the speaker: (1) acting solely independently, in which case there is
no endorsement, or (2) acting on behalf of the advertiser or its agent, such that the speaker’s
statement is an “endorsement” that is part of an overall marketing campaign? The facts and
circumstances that will determine the answer to this question are extremely varied and cannot be
fully enumerated here, but would include: whether the speaker is compensated by the advertiser
or its agent; whether the product or service in question was provided for free by the advertiser;
the terms of any agreement; the length of the relationship; the previous receipt of products or
services from the same or similar advertisers, or the likelihood of future receipt of such products
or services; and the value of the items or services received. An advertiser’s lack of control over
the specific statement made via these new forms of consumer-generated media would not
automatically disqualify that statement from being deemed an “endorsement” within the
meaning of the Guides. Again, the issue is whether the consumer-generated statement can be
considered “sponsored.”
Thus, a consumer who purchases a product with his or her own money and praises it on a
personal blog or on an electronic message board will not be deemed to be providing an
endorsement.21 In contrast, postings by a blogger who is paid to speak about an advertiser’s
product will be covered by the Guides, regardless of whether the blogger is paid directly by the
marketer itself or by a third party on behalf of the marketer.

Well, that’s fantastically vague and simply reiterates what’s already in play with search engines and general public sentiment. Then we move on to:

Similarly, consumers who join word of mouth
marketing programs that periodically provide them products to review publicly (as opposed to
simply giving feedback to the advertiser) will also likely be viewed as giving sponsored
messages

And this is a good example of stuff that’s probably happening, but not with anyone I know, read or trust:

Example 5: A skin care products advertiser participates in a blog advertising service.
The service matches up advertisers with bloggers who will promote the advertiser’s
products on their personal blogs. The advertiser requests that a blogger try a new body
lotion and write a review of the product on her blog. Although the advertiser does not
make any specific claims about the lotion’s ability to cure skin conditions and the
blogger does not ask the advertiser whether there is substantiation for the claim, in her
review the blogger writes that the lotion cures eczema and recommends the product to
her blog readers who suffer from this condition. The advertiser is subject to liability for
misleading or unsubstantiated representations made through the blogger’s endorsement.
64
The blogger also is subject to liability for misleading or unsubstantiated representations
made in the course of her endorsement. The blogger is also liable if she fails to disclose
clearly and conspicuously that she is being paid for her services. [See § 255.5.]
In order to limit its potential liability, 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. The advertiser should also monitor
bloggers who are being paid to promote its products and take steps necessary to halt the
continued publication of deceptive representations when they are discovered.

I’d like y’all to remember that I called WOMMA out as being a new breed of asshole some time ago. If you feel like you’re over-regulated do be sure and thank them.

My suggestion is to read the documents in it’s entirety on your own. You’re smart, you don’t need me to disseminate information for you, I will tell you this, I haven’t read a good analysis online or in MSM yet. That should terrify you. The big boys are reporting this with great inaccuracy and, naturally, the FTC will not be enforcing that.

The FTC And Mommy Bloggers: Tech Talk Tuesday

05.19.09

I’d planned a post about E911 and the need to keep your land line. But today’s headlines have me changing course.

BusinessWeek wrote a short article about the “influence” that’s both paid, and unpaid in the blogging world. Naturally, they focused on the Mommy Blogging World, and naturally they focused on Jessica Smith. There is an 86 page PDF on the site that serves as proposed guidelines to bloggers. I recommend reading the PDF and then taking the the article as commentary.

Jessica Smith puts herself out there. She was one of the original Wal Mart Eleven Moms (I forgive her for that), she’s accepted a Ford for a year after writing a very complimentary review of their car, and she has been paid by just about every company a Mommy Blogger would hope to woo. I want to tell you two things about Jessica.

Jessica Smith isn’t a Mommy Blogger. I’ve scoured Jessica’s site and I can’t find anywhere that she calls herself a Mommy Blogger. Jessica refers to herself as a PR person and a marketer, and I totally respect her as such. Jessica has a blog. But a Mommy Blogger? No, is she a friend of the Mommy Bloggers? Yes. Jessica Smith might be the best friend a Mommy Blogger has. She’s a Mom and she’s a marketer with a blog that appears to be well compensated.

Secondly, within this space I’d consider Jessica Smith a friend. We’ve certainly had our go-rounds, but from my perspective she is completely up front and just working hard to support her own lifestyle. Jessica often recruits Mom Bloggers for paid work. I respect that. She’s introduced me to some pretty terrific women, and her reputation is stellar. She’s an honest woman. I give you honesty and demand it from the people in my life. Honest is good.

The Federal Trade Commission (FTC) is looking to make some changes. According to these documents the the FTC will be attempting to hold bloggers to some of the journalistic standards that real journalists are held to. If the FTC has it’s way there will be no more eczema cures from hand creams or reviews of car seats that magically appear at people’s homes. I welcome this change.

I’m pitched every day. I have a filter set up for press releases, and for the most part I file them away, never to be seen again. I have a few publicists I’m happy to hear from. There’s one lady out of New York that always has a great small business to introduce me to. I desperately want to point y’all to small businesses and organic practices. I typically keep reviews or mentions of specific products off this blog, I write at a number of other places, and I like to keep my reviews there, where I’m paid, so I don’t have to worry about the messiness of accepting free crap, I can simply write.

Would I accept a laptop from Microsoft (as others have)? Maybe, if I needed one. Let’s be clear though, the price of free is high. Is my blog now a Microsoft Sponsored blog? Do you care what I have to say about a product if it’s been given to me? What if my policy is to only write nice reviews? How would I be taxed on that “free” laptop?

My promise to you is to be honest when I talk about a product. If it is given to me, I will tell you. Things do not just appear in my home. It is not acceptable (in my mind) for a blogger to say, “Occasionally I enjoy featuring something that I really like (sometimes it’s given to me, sometimes I buy it myself).

I’m not the one making the rules. I love the blogosphere, I love that we’re writing the rules as we go along. Publicists will need to be more careful, perhaps asking bloggers for free reviews and then giving them eight pages of “product detail” will cease to be the norm. I doubt it.  As one of my favorite publicists once said, “there are legions of 23 year olds in fake Louboutins screwing this up for everyone.”

I’m sad for Jessica that she’s once again being held up as the standard of a blogger on the take. I could easily direct you to a dozen “mommy blogs” that call themselves Mommy Bloggers and haven’t a lick of original (or literate) content. I’m not really into giving them traffic though.

The advertising firms and the PR firms will need to choose their bloggers wisely. Thus far, the selections have been mind-boggling. I’d rather have no mention of me than a mention from ____.  I’ll give you a hint, the lists suck. I’m just going to grab a handful of popcorn, sit back, and watch the show.