As the FTC increases its enforcement of its Guides, social media policies are getting a lot of attention, marketing attention from law firms, and blogs that offer bad or incomplete advice. Here are a couple of mistakes I’ve seen in recent blogs about social media policies:

Stating “This is my personal blog. All views expressed here are solely mine and not those of my current or past employers.” — which is stating that the opinions you express are your own — is the opposite of disclosure. An example of disclosure would be writing an opinion about a magazine’s publisher, and then disclosing to readers that you get paid to write for the magazine.

The FTC requires that brands and their agencies maintain and train their people on social media policies that ensure compliance with FTC guides. As a brand, your policy responsibilities extend to your agencies, so make sure they are meeting their obligations.

In fact, the FTC recently published guidance a framework for brands to ensure they are doing the right things, which I describe in this post.

The FTC recently clarified brand responsibilities for social media policies, in the form of Three Ms, as follows:

1. Mandate a policy that’s in compliance
2. Make sure people you work with (or on your behalf) know what is in compliance
3. Monitor for compliance (reasonable systems must be in place). The FTC does not seem to accept affiliate agreements alone as evidence that companies are policing their affiliates.

When the FTC says Monitor, they mean that you should audit and spot check your processes. They are not suggesting that you use a social media monitoring tool to track every mention of your brand or campaigns.

On Jan. 19, the Word of Mouth Marketing Association (WOMMA) released the WOMMA Guidance on Privacy, a set of self-regulated privacy guidelines that focus on social media and the use of consumer Personally Identifiable Information (PII).

Referring to recent FTC settlements against Google and Facebook, WOMMA applauded recent FTC efforts to raise the issue of privacy, and for making transparency a key point.

Along with some major brands and agencies, WOMMA and its board of directors agreed upon core principles for protecting privacy across all marketing and communications channels. WOMMA’s Guidance on Privacy are aspirational core principles to follow, and are not mandated or required guidelines for the industry.

WOMMA stated on their blog, that, while privacy is a multi-faceted issue, WOMMA believes that transparency and choice are at the heart of establishing and sustaining the meaningful connection between brands and consumers.

Excerpts from WOMMA’s Perspective on Privacy:

• Brands should be open and honest about PII that they are collecting, using and sharing from consumers.
• Brands should use PII collected from or about consumers for the purposes that they have clearly communicated.
• Brands should collect PII that is relevant and necessary to accomplish the specified purposes.
• Brands should not retain PII for longer than necessary to fulfill the specified purposes or to otherwise meet legal requirements.
• Brands should employ relevant and reasonable measures to protect PII.
• Brands should be accountable for complying with these principles, by providing consumers with a readily accessible means to express concerns or complaints.

“In the relationship between the advertiser and customer, sensitive information can be transmitted, whether financial or personal,” said Anthony DiResta, Partner at Winston & Strawn and WOMMA General Counsel. “It is the sensitivity of that information that creates concerns about privacy, and WOMMA believes that transparency and choice are at the heart of establishing and sustaining the meaningful connection between companies and their customers.”

“Privacy is becoming an increasingly important topic for both brands and consumers,” said Paul M. Rand, President/CEO of Zocalo Group and WOMMA Immediate Past President. “The principles set forth in WOMMA’s Guidance are meant to educate our members and the industry as a whole on key privacy issues, and we look forward to continuing the discussion.”

In disclosure, I serve on the WOMMA Member Ethics Advisory Panel.

The FBI brought William Lawrence Cassidy to trial for sending more than 8,000 distressing tweets over 2 months, to a leader of a Buddhist group. During that time, he threatened her life and wrote tweet haikus containing disturbing images of violence. His efforts scared her so much that she refused to leave her house for 18 months, but the judge overseeing the case ruled that Cassidy’s tweets were protected speech under the First Amendment, as they appeared on a public bulletin-board-like forum.

The judge said:

“…while Mr. Cassidy’s speech may have inflicted substantial emotional distress, the government’s indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters.”

According to the New York Times, the judge compared Twitter to communications during the colonial period:

He said, “A blog is like a bulletin board that a person of [the colonial period] might have planted in his front yard. If one colonist wants to see what is on another’s bulletin board, he would need to walk over to his neighbor’s yard and look at what is posted, or hire someone else to do so.”

With Twitter, he went on, news from one colonist’s bulletin board could automatically show up on another’s. The postings can be “turned on or off by the owners of the bulletin boards,” he wrote. In other words, one can disregard what is posted on a bulletin board. “This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person,” the judge concluded.