Disastrous disclaimers in the digital era: a how to guide on correctly implementing disclaimers in the age of digital media

Photo Courtsey of MichaelMaggs (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

Updated 9-1-15

Free stuff is awesome. Whether it’s free massages at an event or a company giving you free items to blog about, we all love free stuff. But when you write or make videos about the awesome free stuff you get, if you don’t take proper precautions there could be some consequences. In this guide we’ll break down how to avoid false advertising claims by using disclaimers and some of the unique things you need to know about using disclaimers online.

Why would you need a disclaimer in the first place?
In 1980, the Federal Trade Commission (FTC) created a series of guidelines to protect consumers from faulty and misleading advertisements. Advertisements can affect the way consumers choose to buy certain products and services. Without regulation, consumers could purchase products and services that do not work as expected.  With the development of technology this century, the FTC now applies these guidelines to podcasts, vlogs, blogs, social media and other online media because they often contain advertisements. If a user relies on information in a podcast or blog as your opinion and not a paid advertisement you could face an enforcement action from the FTC. Therefore, having a disclaimer helps your users interpret when your work is and is not an advertisement.

Ok, but when do I need to use disclaimers?
You don’t always need to have disclaimer when you mention a product or service on your blog. If you purchased a product or service on your own, got a discount that was available to everyone or received a giveaway item that was publicly available you don’t need to include a disclaimer because even if you got a great deal it doesn’t affect the weight your readers may give to your recommendation.

On the other hand, when you are advocating for a certain product or service because you received compensation for that opinion or are getting some benefit not available to the public, you will need a disclaimer. Keep in mind that the FTC thinks about compensation very broadly even if the item you receive isn’t a big ticket item (such as a BOGO coupon or even a tiny packet of moisturizer) or it’s an experience (the chance to appear in a commercial, get invited to exclusive parties, getting a one month free lease on a car), you still need to disclose it because getting it for free could affect your opinion of the product or service. Here are a few more specific examples of situations you may need to use a disclaimer:

• Mandy receives free makeup set from a popular makeup brand as part of their “ambassador program” so she can vlog about it. Mandy needs to include a disclaimer in her video that she was given the makeup by the makeup brand.
• Bob is a blogger. A local technology company paid him $300 to blog about their new delivery drone. Bob must include a disclaimer in his blog that he was paid to write the article.
• Chris has a travel podcast. On his most recent stay at a hotel when he went to pay the manager comped his entire stay and said “Anything for you Chris! We love your blog and we hope you’ll consider showing us some love on your blog.” Even though Chris was prepared to pay for his stay, because he was given a free stay that could alter his opinion of the hotel he must include a specific disclosure in his next podcast if he talks about the hotel.
• Marsha, a video game blogger, gets invited to try out a new video game at EA’s offices. EA loans her a copy of the game for two weeks so she can review it. Regardless of the content of Marsha’s review because she received the game for free she will need to include a disclosure in her blog post.
• Clark attends a star-studded awards show and receives one of their famous VIP SWAG bags filled with certificates for tropical vacations, pricey tech goodies and gift cards for insanely expensive restaurants. Clark, a non-celebrity blogger who was a +1 to his industry friend, may need to disclose in his review of his tropical vacation that he got it for free in a SWAG bag because of the over the top exclusive nature of this particular SWAG bag.

And here are a few examples where you would not need a disclaimer:

• Sandy mentions several products on her blog that she bought on sale during a recent shopping trip with a coupon she found online.  Even if Sandy got a killer deal, because these deals were available to the general public no disclaimer is required.
• Bob talks about the delicious free sample lunch he had at Costco. Since the free samples were available for all customers no disclosure is required.
• Chris goes to a conference and, like all other attendees, gets a SWAG bag at check in filled with snacks, stickers and pack of branded playing cards. Because this bag was available to all attendees Chris doesn’t need to include a disclosure if he reviews something that was in the bag.

Ok, I need a disclaimer. What should my disclaimer look like?
Time for your least favorite lawyer answer, it depends. It depends on what you need to disclose and what platform you are using.  The general rule is that disclosures must be “clear and conspicuous,” but before we get into some specific examples of what that might look like; here are some general principals to help you make clear and conspicuous disclosures.

• Your disclosure shouldn’t be in legalese. When it comes to effective advertising disclosures plain, simple easy to understand language is best. When it comes to social media even using a the #Ad may be sufficient to indicate that something is an Ad particularly on platforms where you have a limited character count
•  Your disclosure should be complete. It may not be enough to say that you got something for free, particularly if you were given additional compensation on top of the free item to ensure your positive review. Be sure to disclose anything that could bias your review of a product.
• The disclosure must be near the relevant content. Having one disclosure at the top of your web page or a link to a disclosure isn’t enough. It needs to be conspicuous to the average viewer of your content. That means it needs to be near the content.
• The disclosure should be easy to read and stand out from the background. Your disclosure is not the time to bust out size nine, light yellow, Wingding font.
• If you have a written ad on a video it must be on the screen long enough for a viewer to notice it, read it and understand it.
• Audio disclosure should be spoken at a normal pace, so that your listener can understand it.
• Even if you use a disclaimer you must tell the truth!

Remember a disclaimer isn’t a get out of false advertising claims free card. Even if your make a disclaimer your review should be as truthful as possible. This doesn’t mean your negative reviews need to be mean, stream of conscious rants. But it does mean you should shy away from making untrue statements, like saying a product worked great when it didn’t even turn on. Here are a few example disclaimers to give you an idea of what a disclaimer might look like.

• Referring back to the YouTube example from above, if a beauty company did pay you or gave you the product for free in exchange for the YouTube review then this should be disclosed. You could include this specific disclaimer orally or in writing at the beginning of the clip with words like “[insert beauty company name] gave me this [insert hair care product] for free so that I could demonstrate its quality to my users.”
• Back to Bob the blogger. A local technology company paid him $300 to blog about their new delivery drone. Bob must include a disclaimer in his blog that he was paid to write the article. Bob may want to include as his first sentence or as a subheading to the article something like “sponsored post” above his blog or should start his blog with a sentence like “I received payment from [insert company] name. to write this blog”
• Anne is a part of a lifestyle brands blogger network. After trying out the yoga mat she was given through the network, she wants to tweet about it. She might try tweeting “Loving my new yoga mat from yoga stars! Didn't slip once in my hot Yoga Class #Ad”
• Samantha has a Twitch live steam channel. A video game company gave her an advance copy of their new game to live stream and a t-shirt to wear during the steam. While playing Samantha should periodically make oral disclosures that she received the game and the T-shirt for free from the video game company.

Other times when you might need a disclaimer
Disclaimers aren’t necessarily all about free stuff. There are a few other types of situations you may need subject specific disclaimers.

• Selling medicine, health, beauty or fitness products or services.
• Political Advertising.
• Selling physical products. Certain types of physical products like jewelry may have their own disclosure requirements. In addition, if you’d like to advertise you product as made in the USA there are specific guidelines you must follow.
• Professional Adverting. Depending on your profession, like lawyers or CPAs you may have certain disclaimer you must use for your online advertising and content.

Since most of these types of disclaimers involve specific areas of law you should to talk to a lawyer about writing a disclaimer narrowly tailored to your needs.

While disclaimers can be a confusing area, hopefully this guide helped give you a nice grounding in the basics of disclaimers. Now go forth and get your SWAG on!

For more information on implementing disclaimers in digital advertisements you can find the full FTC report here.

This guide was created by New Media Rights, with special thanks to Legal Intern Amy Vaughan. New Media Rights is a small non-profit in San Diego that helps creators of all kinds with legal questions. If you have a question for the NMR team, you can contact us by using our contact form. If you value guides like this and the other work New Media Rights does, consider becoming a supporter today.