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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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I've done quite a bit of public speaking over the past few years, including on the rules governing commercial use of social media. &nbsp;Recently, I was invited to present to a conference of speakers bureau professionals on the rules their speakers should follow when writing in social media about the events at which they speak. &nbsp;Very meta.

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I commend the International Association of Speakers Bureaus (<a href="http://iasbweb.org/" target="_blank" rel="noreferrer noopener">IASB</a>) for recognizing the significance of this issue for their members. &nbsp;The correlation between public speakers and the Federal Trade Commission's rules for fair online advertising is not an obvious one. &nbsp;In recent years, FTC has brought a lot of attention to the subject of sponsored celebrity tweets and free gifts given to bloggers in exchange for positive reviews. &nbsp;By far, however, the focus here has been on the endorsements of consumer products. &nbsp;Think Kim Kardashian's promotion of Carl's Jr. burgers, for example, or the fictional movie star JuliStarz's endorsement of weight loss pills--the case study used by the FTC itself in its <a href="http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf" target="_blank" rel="noreferrer noopener">most recent guidance</a> on the subject.

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That said, when the FTC uses the term "product," it actually <a href="http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf" target="_blank" rel="noreferrer noopener">means</a> "any product, service, company or&nbsp;industry." &nbsp;(16 CFR 255.0(d).) &nbsp;And the principles that the FTC enforces--those of honesty, fairness, and full disclosure--apply to all forms of advertising and subject matter being advertised.

One thing is certain: social media has become a crucial and commonplace element of public speakers' contracts. &nbsp;For example,&nbsp;<a href="https://twitter.com/JeniseFryatt" target="_blank" rel="noreferrer noopener">Jenise Fryatt</a>, co-owner/marketing director for Icon Presentations AV for events, wrote that when she was hired to speak at a conference last year, she was asked to:

record a 60-90 second promotional YouTube video to be posted on the conference site.

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tweet about my specific session and the conference in general at least twice monthly using the event hashtag.

join the organization's discussion group on LinkedIn.

join existing conversations on the discussion group and share details of my session.

add the event as an one I'm attending and share my participation with my connections on LinkedIn.

promote my attendance/session on my blog and in my newsletters.

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My anecdotal conversations with other bureau representatives confirms that they're seeing similar terms in other speaker contracts.

Now, there's nothing wrong with these requirements. &nbsp;Indeed, they're a logical attempt by conference organizers to squeeze all the return they can get out of the fees they pay for the speakers' services. &nbsp;But in carrying out this social promotion, organizers, speakers, and bureaus alike should be careful not to run afoul of the principles governing social media advertising as articulated by the FTC.

The primary concern in this context is the rule requiring disclosure of "material connections." Section 255.5 of the FTC's <a href="http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf" target="_blank" rel="noreferrer noopener">Guides Concerning the Use of Endorsements and Testimonials in Advertising</a> provides:

When there exists a connection between the endorser and the seller of the advertised product that&nbsp;might materially affect the weight or credibility of the endorsement (<em>i.e</em>., the connection is not&nbsp;reasonably expected by the audience), such connection must be fully disclosed.

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In practical terms, this usually means that an endorser (usually a celebrity or a blogger) must disclose when they have received any form of consideration from the company being reviewed that might suggest any sort of bias on the endorser's part. &nbsp;For example, Ann Taylor was investigated by the FTC in 2010 for inviting bloggers to a conference and giving them free gift cards in exchange for online reviews, without disclosing that the bloggers had received these perks. &nbsp;Hyundai, Nordstrom and other companies have received scrutiny for similar promotions.

Applying these examples to public speakers, we can see that whether or not a post violates these rules will very much depend on the content and context of the message. &nbsp;The sample tweet from Jenise Fryatt above, for example, does not seem likely to be problematic. &nbsp;That's because, instead of making factual representations about the conference, its organizers, or its content, she simply reveals the fact that she's speaking there, and asks her friends to join her. &nbsp;Although the tweet doesn't specifically reveal that she's being paid to speak, it's probably safe to assume that readers will usually assume that the speaker is being compensated.

What's less clear, however, is whether most readers will assume that the tweet stems from a contractual obligation rather than from her unprompted enthusiasm or desire for self-promotion. &nbsp;It's equally unclear whether anyone would feel differently about her message if they knew the whole story. &nbsp;But as the content of the message gets more promotional and less transparent, the risk of liability grows. &nbsp;So, for example, a speaker who is being paid to post about the conference and does not reveal any connection between himself and the event runs a much larger risk of being investigated or fined.

The safest approach is to always disclose the fact that the speaker is being paid to publish the message. &nbsp;And to that end, the FTC has clarified the manner of appropriate disclosures. &nbsp;As the JuliStarz example cited above shows--and contrary to <a href="http://jeffhurtblog.com/2012/10/03/speakers-social-media-ftc-endorsement-guidelines/" target="_blank" rel="noreferrer noopener">prior understandings</a>--abbreviated hashtags like "#Spon" no longer pass muster; the FTC has made clear that it "<a href="http://ftc.gov/opa/socialmedia/twitterchats/130321dotcomdisclosureschat.pdf" target="_blank" rel="noreferrer noopener">prefers</a>" the full word "Sponsored." &nbsp;And it has <a href="http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf" target="_blank" rel="noreferrer noopener">given</a> what appears to be blanket approval for tweets that begin with the word "Ad." &nbsp;Hyperlinks to disclosures on separate web pages are <a href="http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf" target="_blank" rel="noreferrer noopener">not sufficient</a>; the disclosure must be made in direct proximity to the message itself. &nbsp;And of course, while longer, narrative explanations might be preferable, they are impractical for use on Twitter and other space-constricted social media.

Who bears the risk here? &nbsp;The FTC <a href="http://ftc.gov/opa/socialmedia/twitterchats/130321dotcomdisclosureschat.pdf" target="_blank" rel="noreferrer noopener">continues </a>to make clear that it will focus its limited enforcement resources on the companies behind the advertisements, rather than individual bloggers. &nbsp;This is logical, because it gets to the source of deceptive messages, and therefore presumably deters other bloggers posting on behalf of the same advertiser. &nbsp;The FTC is not the only entity that can enforce fair advertising laws, however; state agencies and private competitors can as well. &nbsp;Moreover, in the case of public speakers, there may be many instances in which the speakers themselves--just like other celebrity spokespeople--carry more commercial cache than the organizers of the individual conferences at which they appear. &nbsp;And speakers bureaus themselves likewise play an indispensable role in securing engagements and negotiating the terms of speakers' contracts.

All players in public speaking engagements, therefore have a stake in ensuring that social media promotions of their events stay within the bounds of fair advertising regulations.

<em>In case you were wondering, although I did receive accommodations from IASB for speaking at its conference, it did not ask me to publish this blog post or anything else, and did not compensate me for doing so.</em>

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Conference Speakers Should Follow FTC Guidelines for Sponsored Social Media Posts

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