Use this checklist to ensure you’re following legal requirements and best practices for your social media campaign:

Social Media Checklist

When working with influencers, you should keep two main principles in mind: honesty and disclosure.

• Influencer endorsements must be honest and not misleading. This means endorsers must share their genuine opinions and cannot make false claims.
• The endorser must clearly disclose their relationship with the company. For example, the influencer must disclose that the company has a business or family relationship with the influencer or pays the influencer in some way. Payment includes paying money, providing free accommodations, giving free samples, or providing publicity opportunities like TV appearances, among other scenarios. These examples are considered “material connections.”

When posting sponsored content, influencers must clearly disclose their relationship so that viewers can easily identify advertisements. Such disclosures must be obvious, unavoidable, and easy to understand.

• Be Clear
  Viewers should immediately know it’s an advertisement
• Be Visible
  Don’t hide disclosures behind “more” buttons/links
• Match Format
  If the endorsement is made both visually & verbally, disclosure should be in both ways too

Clear, Unambiguous Disclosure

Always clear:

• #ad
• #paid
• #sponsored

Clear when brand is named:

• #[name of brand]ambassador (example: #nikeambassador)
• #[name of brand]endorser
• #[name of brand]partner

When sponsor is unclear, and knowing identity is important to consumer:

• #ad_by_[name of brand]
• #paid_by_[name of brand]
• #sponsored_by_[name of brand]

Unclear, Ambiguous Disclosure

• #sp
• #spon
• #thanks[name of brand]
• #team[name of brand]
• #ambassador
• #partner
• #collab

An influencer’s post must reflect their honest opinions, beliefs, and experiences. Influencers should not post about experiences with products or services they’ve never used.

If an influencer post contains a claim about your company’s products or services, you must have evidence to support that claim. For example, if an influencer says a skin care product will produce certain results (i.e., clear acne or make skin softer), the company should have data and research to support this claim. If not, you and your company may be liable!

Instagram

• Material connections must be disclosed before the “More” button. This is typically prior to the third line of text.
• If a post endorsing a product is on a platform where the description isn’t seen at the same time as the post itself or a majority of users may not read the description, the influencer must superimpose the disclosure onto the image.
• To post branded content, influencers must use Instagram’s “branded content” tool and get permission from their partner brand before tagging any product, brand, or partner.

TikTok

• When posting content that promotes a brand, product, or service on TikTok, the influencer must turn on the “content disclosure” setting.

Video Platforms (YouTube)

• The influencer must place the disclosure within the video, not just in the description of the video.
• The disclosure should be displayed long enough for a consumer to be able to read and understand it
• Your company must follow the disclosure rules and should not rely solely on the tools provided by social media platforms (g., branded content tool on Instagram, content disclosure setting on TikTok) to avoid liability.
• Videos that include paid product placements, endorsements, sponsorships, or other promotional content must be disclosed by having the paid promotion box selected in the video details. If the endorsement is audible, the disclosure should also be audible.

Non-Compliant
My new favorite [PRODUCT] just dropped from [BRAND]. I’ve enjoyed using it and I hope that you will too!

Improved Language
#[NAME OF BRAND]partner #ad My new favorite [PRODUCT] just dropped from [BRAND]. I’ve enjoyed using it and I hope that you will too!

Sometimes the change is simple! Much of the language stayed the same in this example, but the important change is including hashtags upfront so that the audience is aware the post is sponsored.

Non-Compliant
After using [BRAND] [PRODUCT] for the past two weeks, all of my acne has disappeared.

Improved Language
#[NAME OF BRAND]partner #ad I have loved using [BRAND / PRODUCT] this past week. I’ve seen a difference in my skin and received so many compliments.

This example requires the influencer to modify the claim that “all of my acne has disappeared” to a personal opinion (i.e., noticing improvements to their skin).

Non-Compliant
I went to the best new restaurant last week: [NAME OF BRAND]! I had the best time, the food was incredible and the vibe was perfect. Thanks to my brother-in-law for the great meal at his new restaurant!

Improved Language
#[NAME OF BRAND]partner #ad #sponsored I went to the best new restaurant last week: [NAME OF BRAND]! I had the best time, the food was incredible and the vibe was perfect. Thanks to my brother-in-law for the great meal at his new restaurant!

While it’s important to support your family and friends, make sure you disclose anything you received for free, even if it’s a meal. Adding in hashtags indicating that the visit to the new restaurant was compensated helps protect the influencer and you from liability.

Before working with any influencer, put the basics in writing in an Influencer Collaboration Agreement. This doesn’t need to be complicated! A simple agreement can help protect your business and prevent misunderstandings.

Key business terms to include in the contract

• How much you’ll pay the influencer and when
• How many posts the influencer will create
• What platforms the influencer will use
• Whether you can review the post before it goes live
• What happens if the post breaks your rules

Key legal terms to include in the contract

• Influencers can only share honest opinions and real experiences
• Influencers cannot make claims you cannot prove (i.e., don’t claim a hand-cream product “made your hands 10 times softer”)
• Influencers must use clear disclosures like #ad or #sponsored.
• Please reach out to the Legal Aid Society Community Development Project if you need assistance drafting an Influencer Collaboration Agreement.

In addition to having an Influencer Collaboration Agreement in place, you should actively monitor all social media posts published by influencers you work with.

• You should maintain records of any non-compliant posts and document the corrective actions taken. This will help if your compliance is questioned and will help you in deciding which influencers to work with in the future.
• When you discover non-compliant posts or influencers, you have the right to correct and/or remove posts with inadequate disclosures, to withhold payments, and to terminate influencers if necessary. This should be part of your written influencer agreement.
• Employees responsible for influencer partnerships must be trained on and understand the legal requirements for compliant influencer engagement.

Before partnering with an influencer, take time to research their background and online presence. This will help you avoid potential problems down the road. Here are a few things to look for:

• Check for competing partnerships.
  If you’re a local juice shop partnering with a blogger, make sure the blogger isn’t already promoting your competitor across town.
• Review their disclosure habits.
  Scroll through their previous sponsored posts. Do they clearly label partnerships with #ad or #sponsored? If they don’t disclose other brand relationships, there’s a risk they won’t disclose yours either.
• Watch for fraud red flags.
  Be suspicious if an influencer has 50,000 followers but only gets 20 likes per post, or if their comments are full of generic responses like “Nice pic!” or random emojis with no real engagement. Partnering with these individuals likely won’t help you grow your business and could open you to liability.

Compliance investigations are conducted by the FTC and focus on the influencer’s failure to make the material connection disclosure clearly. However, these authorities can and do take action against companies that know or should have known that influencers were not properly disclosing their material connection / relationship with the company. Potential consequences include:

• A warning letter that requires a company to change its practices
• Civil penalties, including fines
• An injunction or cease-and-desist order that restricts the company’s advertising

Customers have the right to share honest opinions about your business anywhere online—whether on Google, Yelp, Facebook, Instagram, or any other platform.

You should review the fine print in your contracts, website terms, and any other paperwork that customers sign. Remove language that:

• Stops customers from leaving reviews
• Threatens to penalize or sue customers for negative reviews
• Claims you own the copyright to their feedback

The wisest policy is to let customers speak honestly about your products and their experience.

If you collect and display online customer reviews, you must handle them fairly and honestly. Below are key rules to follow when collecting, managing, and publishing reviews.

When collecting reviews:

• Ask everyone, not just happy customers. Don’t send review requests only to those who gave you five stars in a survey.
• Be careful with incentives. Offering a discount for leaving a review is okay, but you cannot require the review to be positive. Keep in mind that offering an incentive to write a review may introduce bias or make reviews seem less trustworthy to other customers.
• Never suppress negative feedback. Don’t prevent or discourage unhappy customers from submitting negative reviews.

When managing reviews:

• Verify reviews are real. Set up a system to catch fake reviews. For example, confirm that reviewers actually purchased from you or consider implementing software that flags suspicious patterns.
• Don’t edit the reviews. Don’t modify reviews to alter the message. For example, don’t change words to make a negative review sound more positive.
• Treat all reviews the same. Don’t engage in a more intense approval process for negative reviews than you would for positive ones.

When publishing reviews:

• Show the good and bad. If you have 50 reviews and 10 are negative, you should display all of them, not just the positive ones.
• Don’t play favorites with placement. Don’t pin five-star reviews to the top and bury one-star reviews at the bottom.
• Disclose sponsored reviews. If you gave someone a free product for a review, that should be clearly labeled. For example: “This reviewer received a complimentary product for this post.”
• Explain your review system. Clearly and conspicuously disclose how you collect, process, and display reviews, and how you determine overall ratings. Add a simple note like: “We display all verified customer reviews in the order they’re received.”
• Monitor for fakes. Check periodically for suspicious reviews. If someone tells you a review may be fake, investigate and take action, whether that means removing it, flagging it, or reporting the reviewer.

You can remove reviews that:

• Contain confidential or private information. For example, a review that mentions a customer’s credit card or your confidential recipe.
• Contain harassment or hate speech. For example, reviews with slurs, threats, obscenities, or discriminatory language should be removed.
• Are completely unrelated and off-topic. For example, a review of a completely different service or company.
• Are clearly false or misleading. For example, a review claiming you don’t accept credit cards when you do. However, just because you disagree with a review does not make it “clearly false,” as it may be an opinion. For instance, a review that says, “The food I received was cold,” should not be deleted as it’s a statement of experience and personal opinion.

In addition to interacting with other social media users, there are additional concepts that you should keep in mind to protect your business from liability.

The most important is how you use images in promoting your business across social media sites. The second consideration focuses on running giveaways or contests on your social media pages.

When using images on social media, you must consider who owns the copyright. You can only use images that you’ve created yourself, for which you have secured permission from the owner to use, or that have entered the public domain.

• For images that you have created, it’s important that the image is as original as possible. You should avoid using photos of paintings or photos taken by others (unless permission is granted).
• For images you have permission to use, make sure that the permission is given in writing to protect against any future lawsuits on usage. In that grant of permission, spell out exactly how you plan to use the image (if possible) or ask the owner of the image to grant you unrestricted use.
• For public domain images, you must ensure that the photos you are using are licensed for your specific use. Below are a few types of rights grants which could apply to your business.
• Rights-managed images have specific rules and fees that vary based on the use. For example, a photographer may grant you permission to use their photo only on your website. That typically means you cannot post the photo on Instagram or Facebook to promote your product without the owner’s additional permission.
• Commercial rights allow for images to be used in promoting products. You should ensure that the images you are using for this purpose are licensed for commercial use.
• Non-commercial rights limit the use of images to activities that are not profit-making.

Just because you find an image online, that does not mean you can use it on your business page. This is true even if you are attributing the image to its owner or tagging the person who originally posted it. If you are using an image to promote your business, you must have explicit approval from the creator.

You may, however, use stock images as long as you are checking the rights permissions and complying with their restrictions. You can search online for stock images or use specific sites like Shutterstock, Getty, Unsplash, and Pexels.

The term “sweepstakes” refers to giveaways that individuals enter into with the hopes of winning a prize. The prize does not have to be a product from your company, but can be any other type of giveaway, such as a vacation package or a service provided by a friend of the company. New York State has rules about sweepstakes that your business should follow.

Ensure that your contest does not require a purchase for entry into the sweepstakes and offers an alternative method of entry. For example, you could offer in-store visits to complete entry forms, allow people to mail in entries with hand-written information, or allow people to submit online forms without purchase. A combination of some or all of these options is typically best.

Your initial announcement post should include the prize description as well as clear eligibility criteria for who can and cannot participate, such as:

• Age requirements
• Any geographic limitations by city, state, or country
• The timeline for entry, including opening and closing dates, winner selection dates, and prize delivery dates
• Potential exclusion of employees

It’s important to include a full list of terms and conditions.

• Look up restrictions specific to your state or the platform you plan to use
• New York has rules specific to prizes valued above $25 and above $5,000
  •  For prizes valued above $25: Within 90 days of the end of the sweepstakes, you must file a list of winners along with a description of the prize won (known as a Certification of Winners) with the New York Department of State.
  • For prizes valued above $5,000: You must file with the Games of Chance Registration and pay a filing fee of $100. You must also file the list of winners and a description of the prize(s) won with the New York Department of State within 90 days.
• More information can be found online at New York State’s Games of Chance Registration site.

Social media platforms also have sweepstakes-specific rules.

• Instagram
  Must state that Meta is not involved and is released of liability and include the full sweepstakes rules in the initial post or in your profile’s bio.
• Facebook
  Must include a disclaimer that Facebook is not involved in any posts related to the sweepstakes.
• TikTok
  Users running sweepstakes must utilize the platform’s Live Giveaway feature, the prizes cannot include cash or a gift card and must be less than $500.
• YouTube
  Requires that sweepstakes follow local law and publish a link to the Community Guidelines. You must also provide a disclaimer that YouTube isn’t involved in the giveaway.
• LinkedIn
  Prohibits sweepstakes to be promoted on their platform.

In addition to these sweepstakes rules, you must follow the guidelines discussed in this guide for product promotion, gift giving, and influencer interactions for your sweepstakes campaign. If you fail to follow the requirements for your sweepstakes, the campaign could be suspended or cancelled due to illegality.

When in doubt, err on the side of disclosure. Transparency builds trust with your customers and keeps you compliant with federal regulations.  For detailed information on FTC rules and guidelines, please refer to the following:

• The FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides).
• The FTC’s Endorsement Guides: What People Are Asking.
• FTC Guide: Disclosures 101 for Social Media Influencers.
• Featuring Online Customer Reviews: A Guide for Platforms.
• Soliciting and Paying for Online Reviews: A Guide for Marketers.
• Featuring Online Customer Reviews: A Guide for Platforms.
• Consumer Review Fairness Act: What Businesses Need to Know.
• FTC’s .com Disclosures: How to Make Effective Disclosures in Digital Advertising.

For help with small businesses, email CommunityDevProject@legal-aid.org.

The information in this document has been prepared by The Legal Aid Society and Fordham Law School’s Entrepreneurial Law Clinic for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.