Facebook 'Likes' And Pinterest Photos Can Be Endorsements, FTC Says

“Liking” a company on social media -- or posting a photo of one of its products to Pinterest -- can be an endorsement, the Federal Trade Commission said today in new guidance about online endorsements.

“Simply posting a picture of a product in social media, such as on Pinterest, or a video of you using it could convey that you like and approve of the product. If it does, it’s an endorsement,” the FTC says in a new Frequently Asked Questions update to its 2009 endorsement guides. “You don’t necessarily have to use words to convey a positive message.”

The FTC acknowledges that some platforms (including Facebook's “like” button) don't allow people to disclose any incentives -- and suggests that marketers cope with the limitation by avoiding soliciting endorsements on those platforms.

“Advertisers shouldn’t encourage endorsements using features that don't allow for clear and conspicuous disclosures,” the agency writes.

At the same time, the FTC isn't flat-out telling companies that they can't entice people into “liking” something. “We don’t know at this time how much stock social network users put into 'likes' when deciding to patronize a business, so the failure to disclose that the people giving 'likes' received an incentive might not be a problem,” the agency says.

Facebook itself banned marketers last year from offering consumers incentives in exchange for “likes.”

Still, the FTC's guidance could have a “significant effect on the way marketers think about the use of the 'like' button,” says advertising lawyer Jeffrey Greenbaum, a partner with Frankfurt Kurnit Klein & Selz.

He adds that the new guidance shows that the FTC still considers online endorsements a critical issue. “It reflects the continuing concern about the ways in which marketers are using people to speak on their behalf online,” he says.

The guidance comes four years after the Better Business Bureau's National Advertising Division said that marketers could legitimately entice people into “liking” a product on Facebook in exchange for discounts or other benefits. “Facebook users are aware of the fact that people 'like' content for many reasons -- one being to gain access to promotions, contests and sweepstakes offered through Facebook,” the NAD wrote in its opinion in the case, which stemmed from a dispute between 1-800-Contacts against the competing contact lens seller Coastal Contacts.

In a separate section of its latest updates, the FTC reiterates its controversial stance that online reviewers must disclose whether they received free review copies of books, video games or any other product -- even though print and newspaper reviewers almost never do the same.

The agency contends that the distinction between bloggers and mainstream media is justified on the grounds that the audience views bloggers differently than newspaper or TV journalists.

“If you’re employed by a newspaper or TV station to give reviews -- whether online or offline -- your audience probably understands that your job is to provide your personal opinion on behalf of the newspaper or television station. In that situation, it’s clear that you did not buy the product yourself,” the FTC says. “On a personal blog, a social networking page, or in similar media, the reader might not realize that the reviewer has a relationship with the company whose products are being recommended.”

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