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.

A few people have emailed me seeking examples of social media policies for schools or school districts, but I don’t have any such examples, so I would like to ask readers to help find any folks who have worked through social media policies for schools. If you send me example policies, suggestions or lessons from working through such school policies, I will gladly publish them on this site.

Please ask anyone you know who works with schools and policies, so we can find and share the best thinking with the many education professionals who are working through the challenges of social media in their schools.

You can send any suggestions here.

Thank you.
Chris
@cboudreaux

The leading trade organization for market research professionals — CASRO — published guidelines for anyone conducting market research in social media.

The President of CASRO told research magazine that, “These are not mandated standards. We expect these guidelines will evolve based on changes in the social media environment and research industry. As such, comments, additions and edits are welcome and will be given careful consideration by our task force.”

There has been significant debate in the research community regarding the need for guidelines and standards in social media research. In particular, many researchers argue that such research is unethical without express consent of the consumers whose conversations are analysed. Others argue that any publicly available data is OK to use in market research.

Read CASROs guidelines here.

In a new book entitled lol… OMG! : What Every Student Needs to Know About Reputation Management, Digital Citizenship, and Cyberbullying, Stanford MBA student Matt Ivester explains the dangers of bad online behavior, based on his experience creating and leading a web service entitled JuicyCampus, starting in 2007. The book explains the dangers of bad online behavior, and offers advice to college students who want to enter the adult world with their reputations intact.

In 2007, Ivester founded JuicyCampus.com and invited students at Duke University to gossip freely and anonymously. When he started it, he thought it would be a fun place for college students, but it soon became, “… this malicious website where students were attacked. It got away from me,” he sid in a recent interview with the Stanford Graduate School of Business. “The posts named names, and they were racist, homophobic, misogynistic, vulgar, sexually explicit, deeply personal,” he wrote in the book’s preface.

JuicyCampus.com spread to 500 campuses, attracted investigations from two state attorneys general, spawned hundreds of complaints from college administrators, students, and parents, and even caught the attention of national broadcaster Katie Couric, who described JuicyCampus as a “malicious cesspool of barbs, disses, and insults.” In February 2009 Ivester shut it down.

Out of that experience, he Ivester realized that reputation management and cyber-bullying are big problems on college campuses, and there are not a lot of resources for college students. So, he wrote the book to raise students’ awareness of (1) how their decisions about posting content online will affect how others see them, and (2) how posting decisions by one student will affect the reputations of others.

The book includes carefully chosen anecdotes about videos, PowerPoints, and emails that were meant to be private, but were seen by millions of people.

Previous generations did not have to worry about their college experiments and mistakes living forever for billions to view, Ivester said. But, now, photographs of unflattering behavior, vicious comments on blogs, and even students choices of which pages to “Like” on Facebook could come back to haunt a student twenty years into the future.

“The book is all about personal responsibility,” he says. He starts from the premise that students are creating their online reputations with every piece of content that they post. Most of them enter college with an established digital trail. “Now it’s time for them to take control of that trail and make sure that they are portraying themselves in a positive light,” he says. Campus life offers many temptations and opportunities to experiment. What goes up online will be taken seriously by many people in the outside world. Prospective dates will do a search on their names. Professors, future employers, neighbors, and parents of the friends of their children — the list of possibilities is long.

The book describes ways students can protect their reputations, from carefully managing their privacy settings to constantly monitoring what appears about them online, in addition to a crash course in free speech and tips to help persuade others — either through friendly or litigious means — to remove unflattering content.

The National Labor Relations Board released a report last week that lists the outcomes of investigations into 14 cases involving the use of social media and employers’ social and general media policies, with the goal of helping practicioners in their development of social media policies.

Outcomes included:

• Four cases involving employees’ use of Facebook where the NLRB found that employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees.
• Five other cases involving Facebook or Twitter posts where the NLRB found that the employee activity was not protected.
• One case where the NLRB determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a non-union jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page.
• Five cases wherein some provisions of employer’s social media policies was found to be unlawfully overly-broad.
• One case wherein an employer’s lawful policy restricted its employees’ contact with the media.

I plan to provide actionable details for folks developing policies in the next few days.

FINRA proposed rule changes to the SEC regarding communications to the public, and the proposed changes simplify rules for financial services firms using social media.

First, FINRA proposed that firms will not need prior approval of content posted on social sites as long as the site qualifies as an interactive electronic forum.

Second, FINRA proposes to reduce the six categories of communications to three, as follows:

• Institutional communication: includes all communications that fall within the current guidelines.
• Retail communication: includes any written (including electronic) communication that is made available to more than 25 retail investors within any 30-day period.
• Correspondence: includes any written (including electronic) communication that is distributed or made available to 25 or fewer retail investors within any 30-day period.

The proposal eliminates definitions for advertisement, sales literature, institutional sales material, public appearance and independently prepared reprints, and “… communication that currently qualifies as advertisements and sales literature would generally fall under the definition for retail communications.”

Within Retail Communication FINRA proposes a supervisory exemption for:

1. any retail communication that is posted on an online interactive electronic forum (eg., social networks), and
2. any retail communication that does not make any financial or investment recommendation or otherwise promote a product or service of the member.

All of this is good news for firms and reps engaging in social media, since organizations will not need to pre-review content posted to social networks like Facebook, LinkedIn and Twitter.

Even so, the following rules still apply:

1. Firms must still maintain records of the communications at existing levels.
2. In addition, firms must supervise the content in the same manner as correspondence, which means firms must review the content after it is posted, so conversation monitoring and mining capabilities are still important for firms.
3. And you still can’t predict performance, imply past performance will recur, or making any exaggerated or unwarranted claim, opinion or forecast. As the NY Times reported, a California broker was suspended and fined $10,000 in July for posting “misrepresentative and unbalanced” messages on Twitter.

While social networking profiles will be classified as a Retail Communication, the proposed changes do not suggest that profile information will be exempt from pre-review requirements, so profiles still need to be reviewed before publishing.