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Social Media Disclosure with Paavana Kumar | On Top of PR podcast

By On Top of PR

On Top of PR podcast: Social Media Disclosure with guest Paavana Kumar and show host, Jason MuddLearn about when, how, and what to disclose as a social media influencer with our guest Paavana Kumar. Kumar is the Advertising, Marketing, and Promotions Attorney for Davis & Gilbert Law Firm.



Our guest is Paavana Kumar, a marketing, media, advertising, and promotions attorney from Davis & Gilbert Law Firm.



Learning more about disclosing brands/products for social media influencers



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Five things you’ll learn from this episode:

  1. What are the legal regulations for companies and influencers on disclosures?

  2. What are the advantages of bringing in legal counsel early in a disclosure?

  3. When and how do I make good disclosures?

  4. What are some tips on how to better manage influencer disclosures?

  5. What are important aspects of disclosing products that I should know about?


  • “Material connection is not just payment.” - @LPaavana

  • “The fact that they’re issuing warning letters to influencers themselves shows they’re not afraid to take actions against individuals either.” - @LPaavana

  • “They’ll hold companies to a reasonable standard of training, monitoring, and ultimately taking action if an influencer is not complying with these disclosure obligations.” -@LPaavana

  • “The FTC is not prescriptive in how to make those disclosures.” - @LPaavana

  • “You can’t require a consumer to only post if it’s positive because that would violate the requirement.” - @LPaavana

If you enjoyed the episode, would you please leave us a review?


About Paavana Kumar:

Paavana Kumar is a marketing, media, advertising, and promotions attorney. She is deeply involved in all aspects of social media marketing, social and experiential activations, influencer and native advertising, and related promotions.


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Presented by: ReviewMaxer, the platform for monitoring, improving and promoting online customer reviews.




- On this episode of On Top of PR, we are talking to Paavana. Paavana is an attorney with Davis & Gilbert in New York City. And she's gonna share with us the five mistakes that many companies are making when it comes to social media, online reviews and influencer marketing. I have gotten to know her and her firm. Over the years, they have been excellent trusted advisors to my company and my agency team. And I am thrilled to share with you these five mistakes that you and your corporate marketers, and even maybe your PR agency are making, and that are really important that you identify these now and address them as soon as possible to keep yourself out of trouble with the FTC, and to make sure that your brand is doing everything it can to be ethical and in full compliance. Tune in, we're looking forward to a great episode.


- [Narrator] Welcome to On Top of PR with Jason Mudd presented by ReviewMaxer.


- Welcome to the next episode of online On Top of PR, I'm your host Jason Mudd. Today I'm joined by Paavana. Paavana welcome to the show.


- Hi, Jason, I'm glad to be on.


- We are glad to have you and glad to have an episode. Today's one is gonna be very interesting. So we are talking about some of the pitfalls that companies make on social media and influencer campaigns. And I'm really excited to talk about this, this as a topic that I think is very important. But before we start once you introduce yourself with just a few sentences of your experience and background and who you are, and other than just being an attorney who specializes in this type of work.


- Thanks so much for having me. I'm glad to be on, so my name is Paavana Kumar. I am an attorney in the advertising and Entertainment Group of Davis & Gilbert. What I do is I work with PR and ad agencies and their clients really on all aspects of their marketing. But in particular, I focus on social media campaigns, with a special focus on influencer campaigns and paid media advertising and native. So what that means is I might be working with an agency on concepting an influencer campaign or a social media campaign, ensuring we're complying with the platform terms of use. But then also keeping in mind the regulatory landscape around influencer marketing and how to engage on social, how to join the conversation, how to be edgy, how to be unique, about how to do it in a way that complies with the legal rules of the road. So I'm very happy to be here today, I promised that I will try to make it as interesting as possible and not a dry legal seminar. And certainly, Jason, I am excited to have a back and forth with you about this topic.


- We're very excited to have you too. And for those of our audience who don't know, Davis & Gilbert is a great law firm and one that has done tremendous work in our industry for literally generations. So we're really pleased to have you representing that firm here today.


- Glad to hear that.


- [Narrator] You are listening to On Top of PR with your host Jason Mudd. Jason is a trusted adviser to some of America's most admired and fastest growing brands. He is the managing partner at Axia Public Relations, a PR agency that guides news, social and web strategies for national companies. And now, back to the show.


- Paavina, we're here to talk about the five mistakes that are commonly made with social media, and influencer campaigns that corporations in my opinion, often don't even know they're making these mistakes, and whether they're doing it in house or they're using an outside agency, somebody's gotta know about these mistakes and bring them to the attention of leadership, and the people operating the campaign so that they don't go south and get themselves in trouble. One of the things we've been talking about also, and I know we'll address this today is I'm seeing a lot of media personalities doing personal, endorsed, or, some kind of receiving consideration for posting on social media. And I don't think they realize what they're doing and nor does the company that they are endorsing understands what they're doing. But, as we talked about that, it's advertising, whether they're receiving in kind consideration or financial consideration, or they have a business relationship tangental, whether it's their TV station, or maybe their PR agency or something like that. So you describe that as deceptive advertising. And those are pretty strong words. So let's dive into that. I think that's the hot topic I wanna hear about. And so let's say that there's a corporation, and they've got a new product launch, and they're out there, basically giving away free samples or free memberships or free products to a media personality, so long as they'll do something on social media, promoting it ideally a video whether that's on Instagram, or Facebook or YouTube. I think a lot of our audience will say what's wrong with that, that happens every day? So let me turn it over to you to win friends.


- I'm glad you teed it up that way, because that's exactly the practice that we're seeing, and that that many companies are managing programs just like that, I think, to kind of maybe go to a first big mistake for companies is not having a good handle on the regulatory landscape. To your point, perhaps media personnel or account teams are saying, what's the problem? This is a standard practice, you gift influencers, you send out product, you got the word out there. The Federal Trade Commission, which I'll call the FTC, does regulate this practice under its guides regarding the use of endorsements and testimonials and advertising. And generally when you have influencers or other personnel speaking on behalf of a brand, though it's gonna be considered commercial speech that's going to be considered advertising for that brand. So the FTC says, if there was a material connection between a brand and someone that is endorsing that brand, and a consumer wouldn't reasonably expect that connection to be there, of a truly means that expecting that the influencer or the incentivized consumer is expressing their own independent on incentivized opinion, then that connection needs to be disclosed. Material connection is not just payment, I think that's a really important point. Let's say we're just sending gifts out, we're offering in kind benefits, experiences, trips, or other incentives in the hopes that an influencer or consumer is going to post about the product, that connection needs to be disclosed. The form of that disclosure, something we can get into in more detail, understanding that on social media platforms, we may have space constraints. And oftentimes, companies want their influencers to be speaking organically, perhaps as a pushback against saying this is an ad, or something similar, but it is a hot topic that's really on the FTC's radar. I can say in my experience, perhaps more so than any other social media practices. The FTC is really looking at companies to take responsibility for instructing influencers and people to whom they gift a product or offer other benefits to in exchange for posting to let these people know what their obligations are to clearly take them through how to properly disclose that relationship or how to disclose that benefit. And then to have policies in place and ways to actually monitor and train these people to make sure that they're doing this.


- Well, that's great. And, obviously, you can't speak on the behalf of the FTC, but you can certainly speak on behalf of what you've seen them do and how they're enforcing and case law or other incidences of cease and desist notices and maybe even some fines. I'm not an attorney, so I don't pretend to be one on TV or on this episode. But certainly, I think the important thing, message I think to send home is that it's not the influencers job, according to the FTC, on an isolated basis, right? To be responsible for this, but it's really everybody involved. Is that correct?


- That's exactly right. So the FTC has said many times, both in its actions, and informally, they're going to look to all involved parties to ensure compliance. So the FTC certainly has been monitoring individual influencers back in 2017. The FTC did a social media audit of sorts and sent letters to several influencers that they suspected were not disclosing relationships with brands, they also sent the warning letters to the brands themselves. And in their actions, the FTC is certainly held brands responsible when they're really the entity that's responsible for managing and contracting these influencers is not a get out of jail free card to say, Hey, we told this influencer one time that they had to disclose or it's our agency's responsibility, even. That the FTC is really going to look at the companies to see what was their degree of involvement, who's really running the show here? Who's monitoring these influencers and determining who's ultimately responsible?


- I think it's gonna end up being or is everybody who is involved, as you said, so, if there's the client, the agency, and their influencer, there's money changing hands between all three parties in some way or another. So they're basically all three on the hook. Is that fair?


- I think that's completely fair to say. The FTC is certainly making moves to show that they will look at all parties, for example, by naming both the corporations and their agencies and recent enforcement actions. The fact they're issuing warning letters to influencers themselves, shows they're not afraid to take actions against individuals either. A couple of years ago, the FTC took action against the owners and operators of the gambling site that was running an influencer program without requiring people to make appropriate disclosures and their action was not only against the company, but also those individuals. And other enforcement actions the FTC has brought actions not only against publishers, agencies and the clients involved and sponsored content campaigns. But also their CEOs and people in senior positions in their individual capacities in terms of overseeing these campaigns. So it's certainly really important to look at who's running the show, look at the paper trail, and it's on all parties to ensure compliance with these disclosure obligations and other obligations.


- Well, I first attended a seminar put on by the folks at your organization, Davis & Gilbert, back in 2014. And this is when this first kind of came to light for me and then I attended future events on kind of an annual basis thereafter. So I, I'm familiar with this situation, I bring it back and share it with my agency team. So they're aware of that also. But as we kind of alluded to earlier, I'm just blown away by how many people, professionals in public relations and marketing, agency side, corporate side, etc. Have no idea that this even exists no idea that there's some sort of disclosure and regulatory obligation. So if somebody's listening to this for the very first time, right? A couple questions here. One would be, how soon is too soon to start bringing in your legal counsel, whether that's in house corporate counsel, or bringing in your outside law firm, to start having conversations about either, let's start first with we're thinking about doing this. And then second, we've already started doing this and we may be out of compliance.

- That's a great question. I love being brought in at the ideation stage. Hey, we're thinking about running an influencer campaign. Why don't we work with either inside or outside legal counsel to figure out what we want it to look like? How do you want to incentivize people? What will the ultimate messaging to be and how do we structure this in a way that's compliant? Discussing at the outset is great because then you can have a contract in place that has all of the appropriate provisions in it, whether that's, you have to disclose, whether that's hashtag add, hashtag sponsored or another disclosure that's more organic, that accurately describes what you're giving these people in exchange for posting. Be not posting anything that may infringe someone else's intellectual properties, such as photos, celebrity references, other things that could pose a real issue for the company. Restrictions around what if they say something really offensive or inappropriate? Can you terminate the influencer before they become a PR disaster for the company, and kind of work through all of those issues on the front end? I love attaching an influencer policy to agreements with influencers, sometimes to small deals that might even be a standalone policy that you give people. Maybe it's two or three posts that really explain all of this in plain and clear English so you can paper that and make sure the influencers understand their obligations. Another reason to bring in legal counsel early too, is to look at what platforms are you posting at? Are there unique issues, for example, the FTC is issued very specific guidance for how influencers should be disclosing their relationship on Instagram stories, versus an Instagram post versus a Snap, or now even on Tik Tok, there may be new guidance coming out as the FTC revisits how to make disclosures in light of, changing consumer perceptions and evolving new social media platforms. So getting ahead of all of that can really help to have a plan in place, for how to instruct influencers and how to manage the program before running into hot water. And to your point, Jason, what, if we already have an influencer program going? It's never too late to reach out to legal counsel, one of the things the FTC will look at is, well, at least did you try to monitor your influencers? And if you see influencers that aren't complying with their disclosure obligations, did you reach out to them to try to correct the problem? Did you then take action against that influencer if you that they're continuing to not comply? I don't think the FTC intends to be unreasonable. I think they understand that, influencers are still in general, independent contractors. Ideally, a company would be reviewing and approving all of the posts, but perhaps for a campaign where you have 300 influencers that all received a $10 gift card and are posting, they understand that not necessarily all getting better before they go out, as opposed to a Fire Festival example where you have Kendall Jenner being paid $200,000 for an individual post, you absolutely want to be reviewing and approving that post. But ultimately, they'll hold companies to a reasonable standard of training, monitoring and ultimately taking action if an influencer is not complying with these disclosure obligations. And one other thing I would mention too is, the FTC has issued kind of increasingly easy to understand resources for companies and influencers. As recently as this past November, they issued a guide called Influencers 101 that doesn't really say anything new from what's been in the endorsement guides for the past few years, but it really lays out here's how you disclose on each platform. And I think they're taking the position as that there's really no reason for influencers not to understand their obligations and for us to make it easy how to communicate those disclosures.


- What is it that is said, ignorance is no excuse of the law, right? I think this is a perfect example of that, like I said, amazes me that there's people out there saying, "I'm an expert influencer, "I'm an expert in social media, or influencer marketing." And yet you never heard of this and don't know about it. And so my thought is, if you don't know about this, then maybe you shouldn't be practicing in this space. Because, like I said, it's something that's out there and very clear. So I think the first thing we wanna do is obviously put a link to this 101 document that you're describing, in our show notes so that our audience can access that very easily. So is that something that you can provide to me, and then I'll provide it in our show notes?


- Yeah, absolutely.


- Okay, that'd be great. I'm sure everybody will want to download that. And speaking of which, I'm just thinking kind of putting myself in the shoes of the audience, whether they're on their treadmill right now or walking the dog or who knows what they're doing, or maybe they're driving and they're listening to this. And let's say maybe they're, the VP of marketing or VP of corporate communications, and they're like, "Oh, this is a big deal "and we are not in compliance." What beyond reading that document, which is really, a great first step I imagine, what else should these corporate communicators, corporate marketers, influencers who might be also listening and even, agencies who might be listening to this episode? What do they need to do after they've consumed that document? How else can they get familiar and comfortable kind of being aware and navigating this?


- So well, first of all, if a company does not have both internal and external facing influencer policies, and frankly also employee social media policies, they should absolutely have those ideally a separate one for employees who also should be disclosing their relationship to the company if they're posting about it on social or for an agency if an agency's employees posting about their clients, the same disclosure obligations apply. And then on the influencer side, I like to recommend that company have an internal document for teams that are actually managing these programs. Because typically, that is, a specific team or an account at the client or at the agency that's actually in the weeds with the influencers, what documents are you sending them? What's the timeline? What's the plan for monitoring and training influencers and kind of a general overview of how it works operationally. And then, of course, the external contracts. And I like to recommend, having a few depending on the types of programs you might be running, is it a one off post? Is it longer term engagement? Is it an engagement with a micro influencer with a very large reach? Is it more of a celebrity engagement, in which case maybe it's more like having talent contracts in place, but really working through all of that paperwork and then how that paperwork is documented and how the process is enforced, to make sure that we have everything, all our ducks in a row and that we're really buttoned up on that front. The other thing I would say for anyone else's influencers companies, the FTC has a lot of resources on this topic. They also have an FAQs on their endorsement guides that I can also link to in the show notes. And it goes through some very common scenarios for influencer marketing, and also employees posting on social media. The FTC is actually currently in the process of reviewing its endorsement guides, they recognize that now that there are new platforms like Tik Tok, and certain consumers are now perhaps more than ever, almost expecting content on social to be sponsored, as opposed to the opposite, which may have been in 2009, when they first revised their endorsement guides. So that guidance may change. But for now, that's the latest guidance, and it's very helpful. We at D&G also publish very frequently on this just to give updates in the space, the most recent actions, what they mean, and what the takeaway items are. And, we can certainly add anyone that's interested to our mailing list to receive that kind of more insightful guidance too. But there are a lot of resources out there for self education in this space as well.


- Yeah, yeah, absolutely. And I subscribe to those bulletins that you send out, I find them very helpful. And just a good reminder to again, when I have the platform to remind our agency team, just how important this is. And speaking of, that was one of the big takeaways I remember from, between 2014 and say 2016, attending content put on by your law firm, where, I don't wanna use the expression, my mind was blown, but certainly my mind was way opened up to the whole idea that, arguably even, and let me set the table here. So an employee of Axia Public Relations, my agency, if one of my employees went online and liked a Facebook post, of one of our clients, arguably, at least my understanding was, there should be some sort of disclosure even to have pressed that like, that I have a business relationship with this company, and if you think about it, a like is not a comment so there's no way really to comment on that. So that was kind of one of the things I'm like, well then how the heck do you navigate that? But clearly, what else I learned is that if you are gonna comment, And so, we're in the middle of a product launch for one of our clients, they're launching a new product. And so I knew in my mind, just a few days ago, I commented on their posts of the new product saying, hey, this sounds like something great. I'm excited for you guys, congratulations, and, or something like that. And then in that seminar, I realized I need to go back and edit that post and say, I'm pleased to have a business relationship with this company and wish them the best in rolling this out or something like that. And so, we've trained our team about that, and one of the big things is, online reviews, when you're leaving an online review for a company. I've gone in and just said, my company has a business relationship with this company, and during that process, we've become aware of their products and we've used their products, and we've enjoyed having those products, or consuming or ordering or whatever it is with those products. But, I've learned it's important that you have to disclose that. And there's a way I think you can do it where it's conversational, but yet still fully transparent. There's obviously another more rigid way to kind of put like all caps at the top and say, disclosure, I have a business relationship, kind of thing, but I find if you just make it conversational, but yet real. That, that's a pretty good start, is that accurate?


- Yeah, I completely agree. The FTC is not prescriptive in how to make those disclosures. It needs to be clear and conspicuously made and accurately describe the nature of the relationship. But yeah, for exactly for something like a page review, it doesn't need to say, this is advertising necessarily, but if someone got a free product to make their review, they can just say that organically in the review or in your example. There is a business relationship with a client, need even say, so proud of my client for XYZ initiatives, or excited for my clients launch of the products, if it's otherwise apparent from the face of the post that there is that relationship, and there is the need for that additional prescriptive disclosure, the likes issue you raised is also an interesting one, I do get questions about that one a lot, because the FTC is taking the position that liking a client page or company with whom you have a material relationship is an endorsement. To be frank, I have not really seen much enforcement on that point, because to your point, how do you really disclose like. The FTC may look at certain companies that are incentivizing likes on their pages to make it seem like they have greater support than they actually do as a generalized deceptive business practice rather than looking at the people that are liking to have an onus to disclose.


- Yeah, sure, that makes sense. And even going so far to share a post, whether it's your own employer, or it's a client that you, or your employee work for. So in other words, let's use my company's example. If we post something on social media, and one of our employees decides to share it, they have a burden to on that share to put some commentary that say, "This is my employer," kind of thing.


- I would say, as a general rule, yes, the FTC will see that kind of action as essentially adopting the original post. And so it's likely to be an endorsement, is there a gray area where there's no commentary? Arguably, no endorsement, maybe, I tend to look at those things on a case by case. The FTC has said that, a blanket disclosure on an employee's social media page, like in their profile that says, I work for such and such isn't an adequate disclosure, it needs to be clear on the face of the actual host that has the relationship. But that's not to say there's never a gray area, I certainly, look at this kind of situation, assess the risk on a case by case maybe it's a sliding scale. Maybe it's, a one off post by an employee. Do we really need to have them revise it? But as a general rule that's the material connection that the employee would need to disclose, and it's a really good thing to make clear to employees and their policies, every time I present on this, whether it's at a corporation, or at a PR agency, and there are employees there, it's always like, what? That's crazy! I post about our clients all the time. So I think that's an important one to get across.


- It's very eye opening. And I also I think I give credit to your law firm for educating me on the idea that we should not be advising or recommending to our clients to say, hey, once you post this, send out an email and tell all your employees to go online and like it and comment and share on this post because that's also unethical and there's even some employment law that wraps around that also. Do we have time to talk about that briefly?


- Yeah, for sure. Well, so kind of setting aside the social media influencer policies from employees policies. I think employee policies need to cover a lot of the same ground with respect to disclosure. Unlike though, with influencer policies, I think we need to tread a little more lightly with restricting what employees can and can't say online. And especially, if they wanna post legitimately about their work environment or complaints that they may have, or things that may legitimately improve their working conditions. So I think companies need to tread a little bit more carefully with monitoring what their employees are saying online, and deciding whether it's more of a PR debacle, than not, to refute it or to counter it online. And certainly to have parameters in place with respect to clearly separating out disclosure obligations from any provisions in the policy that could be seen as, limiting employees speech in a way that would violate the and similar regulations.


- Right. And so, we're recording this on August 18 of 2020. And, for the last, honestly, I don't remember how long but the last several months, I guess, one topic has been, that we've been talking about at our PR agency and with other PR professionals is, advocacy and obviously, the role of activism. And, can employers dictate to their employees what they can and can't talk about? And I would say, imagine in a very professional, like professional services or professional advisor type positions, can they say, "Hey, "You've gotta remain quiet on this issue," or "You've got to remain neutral, or we're just not talking about it, kind of thing. And maybe on the opposite side, where maybe a company is very passionate, and maybe a company is, involved in activism on their own. And, can they mandate either way, right? What a employee should and shouldn't do, related to any particular cause?

- Yeah, I mean, I think that employers can legitimately ask employees to keep their personal and their business, Social media and other accounts separate to try to create that divide between what's their personal speech and what they're saying on behalf of the employer. I think we have a little bit more reach when it comes to what an employee may be saying on behalf of the employer. Again, I think we need to be careful in terms of reviewing employees speech online, are they saying something blatantly offensive or shocking, or not aligned with the company's corporate values, in which case the recourse may be warranted? And certainly, maybe the company may be able to do that? Or is there an employee that's complaining about, a working environment or wage issues, or other issues that they may legitimately be entitled to express an opinion about if it could create a productive improvement to the working environment, you have things like sexual harassment claims, and other similar related issues. I think companies are currently really trying to embrace transparency, and show that they encourage their employees to raise these issues and especially in the current climate, I think that's practically an important thing to do so, again, it's really a case by case but there are certain handcuffs on limiting employee speech that wouldn't necessarily imply apply to influence your speech, but companies, they wanna adopt a more uniform approach across the board, just in the spirit of transparency and encouraging discussion around these issues.


- And one complication of that is obviously employment laws vary from state to state, there's federal laws and local laws that the company has to navigate also, and then I think you've got to, think about, what is and obviously, trade secrets or confidential information that, a company might be able to enforce, someone not being able to share socially and publicly, but obviously, working conditions and things like that, are probably more fair game.


- Right, right, exactly. And it's perfectly legitimate to have restrictions on sensitive company proprietary or confidential information in both types of policies. That's correct.


- Okay, so we set out today to talk about five things. I think we covered two, three, do you have any idea where we are?

- I think if we're gonna list a five and we could delve into any of them, time permitting, but I think first is, not having a good understanding of what the legal regulations are. B, not having strong influencer and employee policies in place, C, not actually trading and monitoring these employees and influencers to make sure that they are disclosing and otherwise monitoring to make sure they're not saying something that could be a PR disaster for the brand. Say, D, would be being really careful with employee and influencer review practices. You touched on this briefly, But to your point if there's a product launch, immediately emailing all of your employees to go and leave five star reviews on Amazon or another retailer platform. As probably many of our listeners are aware Sunday Riley and other companies have gotten in hot water for practices just like that. And it's also a PR disaster if those internal Communications become public. And then I'd say probably number five would be, not having good operational procedures in place to ensure compliance and take action against employees and influencers that aren't complying with these policies, to the extent permitted by law, especially when it comes to employees. But I think all of those five taken together, if rectified means the company is really taking good positive steps to ensure compliance in both the influencer side and the employee side, and has the records and the paperwork. If God forbid, they ever were an investigation to show that, hey, we're really trying to do everything we can here to be in compliance with the latest regulations.

- Totally agree that's well said and well put. As you were going through each of those I started thinking, who owns the responsibility for this in house? Is that gonna be the HR department for employees and the marketing department for influencers? Or does legal own it all or is it done by committee? What would be kind of in your experience the best case scenario or best practice?


- Certainly HR for employee issues. For influencer issues. Also the in house employment lawyer assuming there's one.


- If there's not one, get one.


- Yeah, right exactly.


- I mean, an outside one, of course, yeah.


- Yeah. And then I'd say for influencer campaigns is typically, quote unquote, owned and managed by marketing teams. But the in house counsel is responsible for marketing and advertising should absolutely be looped in at all stages of development. Not sure if you're getting at, who may have the legal responsibility, I think that tends to depend on the company's bureaucracy, but in the FTC's actions, they really looking at the senior management that was running the show and overseeing the contracts and ultimately managing the campaign, so that person may vary depending on how its structured.


- Gotcha. This vodcast is brought to you by or presented to you by ReviewMaxer who actually helps companies get online reviews through, or at least monitor and manage and promote those online reviews. And so, I know that there's the platform ReviewMaxer works with Amazon and Yelp, and a lot of other platforms. And one thing that I know is from ReviewMaxer is that, Yelp has certain criteria for reviews. And, of course, so does Amazon. And, years ago, I got a product from a client and I tried to leave them a review, I thought it was an honest and fair review. And I included in there that I had a business relationship with them because I learned that from your firm, and Amazon came back and said, "No, we're not gonna post your review." And it was funny because the client kept saying, "Hey, I thought you said you were gonna post a review." And I said, I did and they took it down. And it's almost like they didn't believe me. So I kept forwarding, the emails where they wouldn't let me do it. And then once they knew I couldn't do anything, no matter how much I disclosed, they just wouldn't let me post that review. At the same time, and I think like everybody in the world, or recently US has been buying more from Amazon during the pandemic. And, now I'm getting these things that come in the package that say, "Hey, thank you for your order. "If you leave a review, "and send us a link to it, or screenshot of it, "we'll send you a $20 gift card on Amazon." Or something like that. So I'm seeing that as a consumer, not an influencer, because I don't think that I am, I'm just a regular consumer. But then I'm also seeing where these companies are reaching out to me again and saying, "Hey, we just launched this new product, "we'll send you a free product, you have to buy it first "and then we'll refund your money separately "if you leave a review." That's got me scratching my head just a little bit because it seems as if I would be receiving some sort of incentive or consideration, for one, buying the product and two, leaving a review. They're not mandating because I know that's what I mentioned Yelp for earlier and others, is you can't say if you like this product, leave a review. If you don't, I think you could say, "If you like this product, "please leave a review. "If you don't like this product, "let us know how we can fix it." Is that a fair line? Or do they need to back off a little bit of planting a seed of what action we want you to take? Because it's clear they're trying to avoid saying post a negative review.


- Right? I mean, you can't require a consumer to only post if it's positive because that would violate the requirement, that there rule reviews have to be honest opinion of the person that's posting it. Something a little softer like, if you like this, post a review, I'd perhaps err on leaving out the second half of what you said, which is "If you don't like it, "don't post a review but let us know how we can improve." Perhaps the softer, "Didn't like it, "let us know how we can improve." But you're not handcuffing them from writing a review, a probably worked a line.


- I probably should correct, that's what they're doing. I should correct. That's what they're doing, is they're saying, "If you liked this, please leave a review. "If you don't like it, "contact us and we'll make it right."


- Yeah, I mean, I think that probably poses a relatively low risk of enforcement, assuming the person can in fact go and post a negative review if they like. I think companies are trying to do that, understandably, to encourage people to only post if it's positive, but in that situation, there's no incentive for posting the review. So someone's not gonna necessarily post a more positive review, because they were incentivized in the kind of loophole situation where you were describing, I don't think, rejiggering the chronology such that someone's getting a refund after the fact, and all of the other details really makes a difference. Ultimately, if you're incentivizing someone to leave a review, even if it's that they already purchased the product and you say, "Hey, liked it, "leave a review and you get 20% off your next purchase." That's the kind of thing that would need to be disclosed in the review.


- Right? Yeah, absolutely. And it seems like for some of these companies, which I have no business relationship with, other than I bought their product. They are are not looking for you to do that, right? I mean, from what I understand from my clients and friends who are Amazon merchants, right? Amazon does the best to not even give you their contact information other than a mailing address, which is why they insert in the package, a little note or something that says, here's how you can reach us kind of thing. So, it's an interesting time that we live in, not only in 2020, but just overall with, where the world is going with how direct consumer and company relationships can be. But then there's intermediaries like Amazon and Yelp, as I mentioned earlier, who have their own rules, and the ways they want them to interact. So I think everybody's trying to kind of control their space a little bit and preserve their relationships. And then at the same time, you've got organizations like the FTC, who are looking out to protect consumers as they should. And I think we as marketers and communicators, we should find that to be a noble and important process that we should honor, and we honor it, by I think finding trusted advisors like you to guide us through this process, keep us advised of what's happening and changing and how we need to evolve. And as you said earlier, and I completely agree, if we're gonna be experts in this space, we have to understand it entirely and advise clients, even if it's sometimes against their will, or their wishes, that this is not the right way to do it. And here's why. And you can't make people leave reviews and you can't make them only leave positive reviews. But there's certainly ways that you articulated and I've articulated and our friends at ReviewMaxer do, where there is alternate methods to sharing your complaint or your issues so that we might resolve them amicably before our reputations take a hit over that process.


- I think that's absolutely right. And the world of marketing is all interconnected. Influencer marketing isn't a siloed field you have maybe overlapping, to your point about retail with e-commerce initiatives offers, you have influencers going out and communicating things about a new offer or product offer a discount, all of those types of things are gonna need to run through your e-commerce team. What disclosures they need to include, can influencers support the claims they're making about your products? It's sort of really connected to the world of advertising and marketing. And, of course, probably beyond the scope of this vodcast. But I think that's important to remember too. It's not that when you have influencers going out and speaking on behalf of your company, the buck stops with the disclosure obligations, but it's all of those communications need to be reviewed as marketing and advertising communications as well.


- So integrity and transparency is what I always say.


- Yeah, exactly.


- This has been a great conversation. I know I'd love to have you back in the future. So I will be in touch with you about that. As our audience has listened to or watched this episode, I'm sure they're thinking, "I need to learn more." So what's the best way for them to get in touch with you and what's the best way for them to get these bulletins and announcements from your firm?


- So we can share my email address, Jason perhaps we can add that to the notes. So whoever else is easiest to communicate it to the audience. Feel free to reach out to me directly. I'm happy to get anyone that is interested onto our mailing lists. Also happy to hear from anyone individually if they have questions or would like to discuss any of these topics, or are intrigued or have been made extremely afraid by any of the things that we discussed today.

- Yeah. Are you on Twitter or LinkedIn or anything like that?


- Yes, I am on Twitter. I can share my Twitter handle and LinkedIn bio as well.


- Okay, great. If you don't mind, maybe verbally share your Twitter handle and your email address for those who are listening and on the go or something like that.


- Absolutely, my Twitter is @Lpaavana. Which is L-P-A-A-V-A-N-A and then my email address is pKumar, which is K-U-M-A-R @dglaw.com That's more pkumar@dglaw.com


- Perfect, thank you for sharing that. Thank you for being on this episode. It was a pleasure to get to know you better and share your smarts with our audience. And I'm sure they are gonna be somewhat burdened by this conversation but at the same time glad that they are now in the know, and able to respond and advise and guide their brands through and navigate these waters, which, has, I think for some of them have become a lot more difficult but a lot more meaningful for them to understand the best practices and the right way to be in full compliance with, what's in the best interest of consumers overall.


- Great. Well, thanks so much for having me today.


- My pleasure. Thank you and be well.


- You too.


- [Narrator] This is been On Top of PR with Jason Mudd, presented by ReviewMaxer.

Topics: On Top of PR

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