Political candidates who use social media in the state of Maryland must disclose their connection to content on social media sites created or maintained by their campaigns, according to one of a number of new rules adopted by a unanimous 4-0 vote by the Maryland State Board of Elections last week. While they are focused on political ads, the new rules in Maryland -- just the fourth state to adopt such rules, after Florida, Wisconsin, and California -- are food for thought for brand and product advertisers.
The new rules require any profile created by a political campaign to carry a disclosure identical to those that appear on printed campaign materials, identifying the campaign committee which paid for the promotion, including the name of its treasurer, according to the Baltimore Sun. Campaigns which fail to do so are subject to a $1,000 fine or up to a year in prison.
Still, it seems to me there may be a number of potential loopholes allowing political campaigns to skirt the disclosure requirement, if they are trying to be sneaky about it. Most important, the rules don't apply to unofficial sites or profiles created by private citizens who aren't affiliated with the campaign, according to the Sun. This raises the obvious question of what constitutes "affiliation": is it just when money changes hands? If that's the case, could an unpaid campaign volunteer create a profile or site without the appropriate disclosures? How about the spouse of an unpaid campaign volunteer? Or the friend of a spouse of an unpaid campaign volunteer?
At a certain point -- and we reach this point pretty soon -- someone who is for all intents and purposes "unaffiliated" with a campaign could create a site which isn't subject to the new rules but is still under the effective control of the campaign strategists, using informal channels to reach the person maintaining it on their behalf. And because of the abundant protections for free speech in the political arena, it would be almost impossible to stop this.
I imagine some people would respond: so what? Well, it's one thing if someone creates a silly fan page for the incumbent county dog catcher -- but quite another if an anonymous (alias) Facebook user posts libelous falsehoods about a candidate for governor in the last 24 hours of an election. Knowing how these things work, it's all too easy to imagine the accusations getting picked up by blogs and maybe even some credulous news organizations. Retractions would come in due course, but too late to save the target of the last-minute political kneecapping.
Another interesting semi-loophole: The rules don't apply to ads or postings of 200 words or less -- which covers anything that appears on Twitter, as well as search term ads by Google -- provided the ad links to a Web site carrying the full disclosure. Even more interesting, this loophole was included at the last minute not because of protests from political strategists, but at the urging of representatives from Google, AOL, Facebook and Yahoo, who said the requirement would basically wreck short-form ads, including search term marketing.