The Federal Trade Commission (FTC) has issued new guidelines regarding paid endorsements that photographers should be aware of—especially if they’re being paid to promote products on their Instagram feeds. This summer the FTC updated Guides to Section 5 of the FTC Act to add guidelines about how “Instagram influencers” and bloggers should identify any company or product they’ve been paid to promote.
Put simply, the Guides insist that if you are being compensated to endorse a company, product or event, you should say so. “The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading,” the FTC states.
According to the Guides, there are no fines for violations of the FTC Act. However, “law enforcement actions can result in orders requiring the defendants in the case to give up money they received from their violations.” Not to mention legal fees.
In the FAQ section, the FTC addresses blogs and social media specifically. “Truth in advertising is important in all media,” the Commission writes, “whether they have been around for decades (like, television and magazines) or are relatively new (like, blogs and social media).”
One of the key points alludes to images: “You don’t necessarily have to use words to convey a positive message,” it reads. “If your audience thinks that what you say or otherwise communicate about a product reflects your opinions or beliefs about the product, and you have a relationship with the company marketing the product, it’s an endorsement subject to the FTC Act.”
On Instagram, photographers often tag companies that sponsor them without disclosing the nature of that sponsorship. If a photographer posts an image of a new car in a landscape and tags the car company, their followers might assume they’re being paid to promote the car to their audience, but unless the relationship is clear to the audience, both the photographer and marketer are open to FTC action. Although the FTC Guides don’t address Instagram directly, they make it clear that the agency wants to see specific language in the caption that acknowledges the photographer’s relationship to the company. “If an endorser is acting on behalf of an advertiser, what she or he is saying is usually going to be commercial speech—and commercial speech violates the FTC Act if it’s deceptive,” say the Guides.
The FTC writes that marketers and endorsers don’t need to hire lawyers or use specific language to comply. “What matters is effective communication, not legalese. A disclosure like ‘Company X sent me [name of product] to try, and I think it’s great’ gives your readers the information they need.”
The Guides appear to put the onus on advertisers to make sure their endorsers and influencers comply with the FTC Act. “If law enforcement becomes necessary, our focus usually will be on advertisers or their ad agencies and public relations firms. Action against an individual endorser, however, might be appropriate in certain circumstances.” Photographers doing work that includes posts to their social media accounts would do well to discuss the Guides with their clients, however, even if the client doesn’t bring it up. It can’t hurt if the person hiring you thinks you’re looking out for them.
Related: What Should Photographers Charge for Social Media Usage? (For PDN subscribers; login required.)
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