How to Avoid Lawsuits When Working with Social Media Influencers
经过保罗·鲁登and道格·戈兰(Doug Gollan)/
Yesterday in a Travel Market Report article, we outlined what you need to know about the Federal Trade Commission (FTC) Influencer Guidelines as they pertain to social media influencers.
Today, we run through a number of scenarios that could impact your business as a travel advisor, with veteran travel attorney Paul Ruden discussing what you need to do to protect yourself. You may be surprised.
Scenario #1
Happy Hotel在其各种社交媒体上发布了来自Suzy影响者的图像,包括Instagram,Twitter和Facebook。Suzy有影响力的人分享相同。她帖子:“快乐酒店很棒。有史以来最好的假期。这是您必须参观的地方。”酒店和Suzy都没有提及她有免费住宿。A client who sees the post from Suzy calls you up, and asks you to book the hotel. On returning, your client says the hotel was awful and was, in fact, the worst vacation ever. Your client sues the hotel, Suzy and you. Who, in this scenario, should worry, and what should they do in the future to protect themselves?
Answer:
Both the hotel and Suzy Influencer failed to disclose that she was given a free stay. The FTC guidelines make it clear that the failure is fatal, because this is clearly information consumers would want to know in evaluating Suzy’s endorsement. While there is no indication that the client relied on the hotel’s posting, as distinct from Suzy’s reposting, there are concerns about the hotel’s role in positioning Suzy to mislead the consumer.
然而,顾问可能在这种情况下贝科逃脱use there is no indication that the advisor knew about Suzy’s endorsement. If the advisor did know about it and reasonably believed the client relied on it, there is a troublesome question about whether the advisor has a duty to warn the client about the risk. A close call.
I’m not sure this is very practical, but the best strategy for travel advisors booking a hotel or other supplier that the consumer pre-identifies is to check for the presence of endorsements that may have influenced the client. The advisor can also simply adopt an “inquiry policy” — whenever the client pre-identifies a supplier, ask about the reason the client has selected that supplier. It might be as simple as the price, but if it’s, “I saw that Suzy Influencer recommends them,” the advisor should dig deeper for endorsement issues.
Scenario #2
Happy Hotel在其各种社交媒体上发布了来自Suzy影响者的图像,包括Instagram,Twitter和Facebook。Suzy有影响力的人分享相同。她帖子:“快乐酒店很棒。有史以来最好的假期。这是您必须参观的地方。”The hotel follows FTC best practices, but Suzy does not make any mention that she was given a free stay. A client who sees the post from Suzy calls you up, and asks you to book the hotel. On returning, your client says the hotel was awful and was, in fact, the worst vacation ever. Your client sues the hotel, Suzy and you. Who, in this scenario, should worry, and what should they do in the future to protect themselves?
Answer:
The hotel is off the hook because it complied with the FTC guidelines. Suzy, however, did not and has legal exposure. The situation for the advisor is the same as in Scenario #1. If he/she wishes to avoid problems arising from compensated endorsements, the travel advisor needs to inquire as to why the client wants this particular property, and make sure the client understands the complete situation.
Scenario #3
Happy Hotel在其各种社交媒体上发布了来自Suzy影响者的图像,包括Instagram,Twitter和Facebook。Suzy有影响力的人分享相同。她帖子:“快乐酒店很棒。有史以来最好的假期。这是您必须参观的地方。”酒店和Suzy都没有提及她有免费住宿。You then repost the hotel’s post from Suzy. A client who sees your post from Suzy’s stay, asks you to book the hotel. On returning, your client says the hotel was awful and was, in fact, the worst vacation ever. Your client sues the hotel, Suzy and you. Who, in this scenario, should worry, and what should they do in the future to protect themselves?
Answer:
每个人都在这里有问题。酒店和Suzy都没有透露免费住宿,这显然违反了FTC指南。旅行顾问将有责任未能询问重新定位的认可是否涉及免费住宿。专业人士的标准比消费者更高,并且应该知道,影响者通常会从他们推荐的财产中获得免费的住宿或其他优惠。
Scenario #4
您去快乐的酒店旅行。您的住宿是免费的。然后,您在您的代理商博客中的酒店上张贴了书籍,并在社交媒体上发布图像。您不遵循FTC指南。客户看到您的帖子和博客,根据您的帖子打电话给您和书籍。当他们回来时,不高兴,他们起诉,命名您和酒店。在这种情况下,谁应该担心,将来应该做什么来保护自己?
Answer:
这是一个简单的案例。旅游顾问是响应sible for failure to disclose that concessions were provided to induce the advisor to visit the property. The hotel does not have that problem here because it made no representations on which the client relied in making the booking. Standing alone, there is nothing wrong with a hotel providing fam trip concessions to induce travel advisors to visit and book.
Scenario #5
An agent who works for you as a salaried employee goes on a fam trip to the Happy Hotel. Your agent’s stay is free. He/she then posts a write up on the hotel in your agency blog and post images on social media. You follow FTC guidelines, but your employee does not when posting on his/her personal social media. A client sees the posts on the personal Instagram, calls your agent up and books based on those posts. Do you, as the employer, have anything to worry about? What if the agent was an IC instead of an employee?
Answer:
This case is complicated. The agency is likely to be held responsible for the “personal” posts of its employee, which were intended to attract business and succeeded in the case posed. The agency cannot escape from the FTC guidelines by arguing that its employee was acting on his/her own. The agency, I believe, should have a policy on this practice, making it clear that all so-called “personal” social media that involve solicitation of business are agency-related and must follow disclosure requirements.
如果在这种情况下,代理一方确实是与该机构有隶属关系的独立承包商,并且隶属于客户,则该机构可能会对IC犯下的FTC指南违反FTC准则负责。关于这一点没有明确的意见,但我认为,这与该机构要求IC遵守联邦准则的IC关系是一致的,就像房主要求独立电工拥有的那样需要执行电气工作的许可证。相反,例如,与IC共享佣金可能足以使该机构负责FTC违规行为。不管是否明确,托管机构都要求IC符合FTC法规,这通常是一个很好的做法。
Scenario #6
This time, our influencer is a celebrity who hosts a major game show on TV, so perhaps the assumption is he/she gets free stays. On his/her Instagram and social media it’s clear he/she travels quite a bit, but nothing is marked as a paid promotion. You see he/she has visited a resort you want to promote, so you repost his/her social media posts with his/her glowing review of the hotel. You have no idea if he/she received a free stay or if he/she paid like a regular guest. A client sees you share of his/her posts, calls you up and books. They are appalled at the service, and while there learn that he/she not only received a free stay, but he/she was paid to post on social media. Yes, your client sues the hotel, the game show host and you. Who, in this scenario, should worry, and what should they do in the future to protect themselves?
Answer:
The hotel and the game show host have each failed to disclose concessions that would reasonably be expected to influence consumers’ responses if they knew about the concessions. Both have a problem under the FTC rules.
I believe the agency/advisor also has a problem in this scenario. A professional travel advisor should understand that glowing reviews by a celebrity are normally not given without some compensation to the endorser whose celebrity status gives his/her endorsement extra power in the minds of consumers. The advisor likely has a duty to inquire before simply re-promoting the celebrity’s endorsement.
Scenario #7
最后一个FAM旅行示例。您或您的代理商去酒店获得折扣价费用。您在博客上写了一份发光的报告,并在社交媒体上分享您的图像 - 当然,目标是生成预订。您不会将其中的任何一个标记为付费促销活动 - 毕竟,您支付了折扣利率。当然,您的客户不开心,不开心,回来起诉酒店,当然是FTC指南的影响者。在这种情况下,谁应该担心,将来应该做什么来保护自己?
Answer:
顾问有问题,因为根据FTC指南,折扣足以创造披露义务。这是一个明确的案例。像第4场景一样,酒店没有对消费者依赖的代表,因此酒店没有FTC指南问题。
总之
如果您作为专业旅行顾问,请有知识or reason to know, given your expertise, that financial or other consideration was provided to an endorser/influencer, you have a duty to make disclosures of concessions that ordinary consumers might consider important in influencing the endorsements.
The FTC takes a broad view of when concessions have that effect, so you should err on the side of greater disclosure rather than less. Even if you have no actual knowledge as such that concessions were made, you will be treated as if you did have knowledge when the circumstances are such that you should at least have inquired about concessions. Remember that consumers are relying on you and your professional expertise to protect them, so act accordingly. If uncertain, inquire and/or disclose.