Why Brands Should Rethink Partnerships with Bloggers

The following is an article published today (June 2, 2009) in iMedia Connection on how bloggers and the brands they sometimes represent have been caught in the FTC's crosshairs. Here are a few specific examples that highlight just how convoluted this battle might become. The article was co-written by Emily Levin, a corporate IP and eCommerce attorney who did a terrific job of helping to break down the FTC's often confusing legalese. 

Some of you may have heard by now that the FTC is planning to implement "self-regulation" policies for bloggers and other social media influencers who are either paid to write on behalf of companies or as affiliates of those companies.

While the move seems restrictive, the reality is that as social animals, we do need rules. In fact, we would assert that by enforcing the virtues of transparency and authenticity, these types of policies are what will ultimately keep the net neutral. The challenge, then, is to help those in the blogosphere understand what exactly is being asked of them.

Co-author Emily Levin is a corporate attorney. 

The following is a constructive look at the FTC regulation of blogs and other social media. Since there is a clear disconnect between legal and creative license, these insights are told through the perspectives of a both a blogger and an attorney.

We'll examine modern examples provided by the FTC to illustrate its revised guidelines.

The question is, given the examples and the guidelines that the FTC derives there from, can the above-average blogger (let alone the everyday blogger) understand and conform their communications accordingly? And even if the blogger can't evaluate them from a legal or liability perspective, might they provide guidance and improvement nonetheless?

Let's explore.

FTC Example 5
A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser's products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog.

Although the advertiser does not make any specific claims about the lotion's ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition.

FTC Position: Advertiser and blogger are both responsible for blogger's (1) false or unsubstantiated statements and (2) failure to disclose clearly that she is being paid for her services.

Blogger Position: The FTC recommends that advertisers should train and monitor their bloggers, but will bloggers live in fear that their statements are not sufficiently substantiated and hold their tongues?

It seems that the most pre-emptive way to avoid the substantiation snafu is to qualify or preface any threads with a set of personal guidelines. While this may conflict with the more random nature of blog threads, it could establish etiquette that is top-of-mind. Further, this would engender a type of social responsibility that could be spread throughout the blogging community at large.

FTC Example 7
A college student who has earned a reputation as a video game expert maintains a personal blog where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software.

As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review.

FTC Position: The reader is unlikely to expect that the blogger received the game for free, and this would impact his review. The Blogger should clearly and conspicuously disclose that he received the gaming system free of charge.

Blogger Position: Should a blogger always have to disclose when they received a free sample? Would it matter whether a manufacturer a) targeted a particular blogger; b) sent samples to random video testers; c) gave samples to everyday people at a conference or d) handed samples out to people at a trade show? Would it matter whether the site was hosted by a) the manufacturer or b) a student?

This poses a curious and considerable debate over the free exchange of ideas, and cross-posting or cross-linking in particular. In other words, one man's roost is not necessarily another man's fodder. With respect to content, it seems necessary that the original blogger qualify the "spread" of information, and to the best of his abilities, credit those in his affiliate network of sites with the potential legitimacy of a product's credibility. From a product standpoint, it also seems fair to say that "neutral" links should be provided that show those product specs in an indifferent light. Ultimately, self-imposed qualifiers can help regulate within environments that have varying guidelines.

FTC Example 8
An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices.

Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer's product.

FTC Position: Unclear, but the implication is that there would be liability for nondisclosure by the employee. The Poster should clearly and conspicuously disclose her employment by the manufacturer to members and readers of the message board.

Blogger Position: If an employer has a blog, should they be required to have a social media policy? Should they be liable if they don't? What if the employee disobeys the social media policy, should the employer be liable then?

These scenarios are certainly not uncommon, and a social media policy does not preclude an employee from liability or great risk to his or her reputation as a blogger. The key here seems to be that both the employee and employer need to construct a shared risk arrangement in which proper editorial monitoring is conducted, along with structured milestones that include issue management guidelines. Again, full disclosure is paramount to not only building trust among community members, but also in helping to define corporate outreach policies that may still be nascent.

FTC Example 9
A young man signs up to be part of a street team program in which points are awarded each time a team member talks to his or her friends about a particular advertiser's products. Team members can then exchange their points for prizes, such as concert tickets or electronics.

FTC Position: The rewards program impacts the credibility of the endorsements. The rewards should be clearly and conspicuously disclosed, and the advertiser needs to make sure of this.

Blogger Position: How can the advertiser ensure the necessary disclosures are being made?

A company can't really play watchdog over conversations that occur in the street and expect its message to spread organically. However, if the incentive program includes very detailed milestones that reflect various potential outcomes by virtue of these conversations, then the risk is greatly mitigated. In other words, the milestones define the disclosure guidelines. The thinking here is that if a product garners enough attention through word of mouth, the conversation will inevitably change, and therefore the representative -- on behalf of the brand -- has ample opportunity to course-correct messaging and/or respective content positioning.

Conclusion
In all scenarios, a definable and adaptable sense of social responsibility is required to ensure the credibility and protection of all parties and products involved. And while the unpredictability of blog or social conversations can be a wonderful alternative to the more intrusive nature of advertising messages, we are still in the infancy stages of what this all means for brands, bloggers, and consumers alike. We must defer to good personal judgment and work together to establish parameters that allow for self-expression in ways that are positive and proactive.

Proactive or Preemptive Relationship Management (How the Domino's Fiasco Could Have Averted)

By now many of you have either seen or heard about the infamous YouTube video that was posted by two Domino's employees, and the response video that was posted by the company's US President. This begs a curious investigation into what crisis or issue management really means, and the major difference between reactive positioning, and proactive or preemptive relationship management.

In watching the employee-posted video, if you put aside the sheer idiocy and disregard for human decency, you can also see a clear desire to self-express. The female employee even qualifies this at the beginning by saying how bored she is. The other male employee, a gay man, makes a couple of references to his sexual orientation and makes it clear that he is frustrated in his own way. Does this excuse their actions? Certainly not. But it does make a case for the notion that these impostors could have just as easily been evangelists if they were truly empowered to do so. By simply giving them a voice.

When you look at the internal branding efforts from companies like American Express (OPEN), Pfizer (Health Solutions) and Dell (several programs), you realize that empowering employees to express themselves gives the brand unprecedented access to new levels of sentiment. Further, when you look at the fact that people are thrilled just to be a part of brand exchanges, you also realize that negative perceptions can be reshaped through transparent conversation. For example, over 95% of all WOM conversations, no matter how negative the sentiment was going in, inevitably turn towards the positive by simply acknowledging the consumer or employee.

So, what does this really mean? It means a few things:

- Give employees and consumers an intranet and extranet platform to speak their minds before a crisis like Domino's happens; you can respond accordingly, and best case scenario, you can develop them into superusers and "uber" brand evangelists.

- Filter out "deconstructive" elements from sheer negative ones, and keep those touch-points alive throughout ongoing conversations so that brand perception can build up its own equity in an authentic way.

- Give the public "shades of the bad"; acknowledgment and accountability breeds credibility; like people, brands are imperfect and are entitled to act imperfectly, provided they own up to it when they do.

- Use a debate context within the organization - opposing sides - to enlist and engender points of view on the outside. Arguing is good, provided there are solutions available.

So, outfit your employees with cameras. Teach them to blog. Encourage them to tweet. Give them channels of expression that allow them to not only share their insights, but build community ties around them. That way, as a brand, it's likely you'll never find yourself having to apologize for something you didn't advocate in the first place.

Can Behavior Really Be Predictive?

Google's announcement that it will be releasing two new behavioral targeting products begs the question as to whether we're still holding onto - and whether we should hold onto - the notion that consumer patterns are predictive in nature. It's an interesting move by Google, when you consider the fact, among other things, the search goliath has its own cookieless browser (Chrome), which is optimized for video/rich media delivery but not the more standard ad units the behavioral model currently uses. Perhaps given its sheer size and market capitalization, Google is looking to expand a few different slices of the pie and see what gains the most traction.

But let's first look at the nature of marketing and advertising in general, particularly as social media becomes more of a focal point in outreach and analytics. Advertising has been largely based on the idea that we can somehow calculate meaning. Marketing has been driven by the idea that we can somehow predict behavior. Media have traditionally sat in flux, waiting to blur the lines between them. And this is precisely where meaning gets lost, at least when it comes to "personalizing" ads.

Social media has taught us that "fixed" targets and "fixed" messages no longer have any real impact, and as such, there seems to be some significant value in the behavioral approach. The idea here is to effectively "retarget" or "remarket" a message or story based on user preferences. So I frequent a page, and based on browsing history and other factors relating to purchases, I will be fed ads that personalize or customize the experience to my needs and interests. If my interests change, so do the ads.

What we tend to forget, however, is that these preferences change at an incredible clip and change dynamically. Our sphere of influence - those people that we crowd around, converse and collaborate with -  can also change instantaneously, greatly affecting the environments we visit and how often we visit them. So will that same ad and its related content then travel with me? 

Preference-based environments are great provided that they provide great content, but as we've seen, display content for the most part is sub-par, which is also why CTRs are still abysmal. Further, as we as consumers seek more and more utility in the ad content we engage with, portability is almost always a sticking point. We've already witnessed this struggle with ad-supported content through the likes of platforms such as Joost and Slingbox. Hulu - which seems to have a much firmer grip on this ad model - also faces inherent challenges, especially with the decreasing demand on inventory and a greater demand on free, premium content.

Perhaps one way to reskin this cat is to adopt more of an online WOM (word of mouth) approach. When you look at the dynamic of word of mouth - in which you have the real-time ability to course-correct messaging based on direct consumer intelligence - it organically seems to work in concert with the retargeting concept. So, in theory, you garner feedback as an ad network or 3rd party vendor, redirect that flow of information, and based on mechanisms like meta- or microtagging, you then index and deliver the appropriate ad content. There are also platform providers/networks like TruEffect (not a 3rd party) who are levering consumer intelligence and "delivery visibility" to create a 1-1 relationship between the ad unit (brand) and the consumer.

This does not solve the redistribution problem (such as having affiliate options for placement based on "new" environments the user visits), but it does provide a window into the possibility of looking at ad content as something truly personal, and, potentially offers more options for a consumer within a particular online environment.  Cross-marketing (and cross-pollinating) messages has been one method to compensate for the devaluation of premium and remnant online inventory, but it is a discipline that is often debilitating to brands and cannibalizes the relationship they carry on with their advocacy bases - it is similar to what sites do when they try to upsell the crap out of you before you've even had the chance to make a simple purchase. So, we'll need to look for affiliate solutions that extend outside of an immediate environment, and media companies can explore new opportunities to "redirect and gather", not only ad content but sources of information as well as monitoring intent to purchase.

So is behavior still predictive? Maybe. But perhaps it is more adaptive than anything else. Remember that you can course-correct a message, but not necessarily a conversation - that is simply not up to you ("you" being a brand), it is up to the consumer. In a peripatetic world, committing to conversations versus set ideals seems to be the most logical means of existence.