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HOT TOPICS
2016
MEMBERSHIP
DIRECTORY
47
otherwise comply with the law must be presented in a clear and conspicuous manner and space constraints
in social media do not relieve you of your obligations to make clear and conspicuous disclosures. You need to
understand how your ads—including any disclosures required—will actually display in the medium or media
in which they appear. This is especially important since it has been estimated that consumers use a cell phone
or tablet approximately 80% of the time to surf the Web. The FTC warned that if you cannot make a required
disclosure conspicuous in a particular medium (e.g., Twitter), then you should not run the ad in that medium. For
example, disclosures on your website or in social media may be sufficiently clear and conspicuous when your site
is viewed on a desktop but may not be sufficiently clear and conspicuous when viewed on a mobile browser such
as a smartphone or tablet.With the explosive growth of social media and the need for careful drafting to avoid FTC
scrutiny, this is a rapidly-changing area of the law and you should consult with your attorney concerning social
media advertising. Regulators actively monitor social media. The FTC entered into five consent decrees in March
2012 with dealers for deceptive advertising and the majority of the 10 consent decrees entered into in January
2014 involved social media as well. The ads came to the FTC’s attention as a result of FTC staffers searching the
Internet and finding the offending ads on
youtube.com. There were no consumer complaints nor any evidence
that any consumer was deceived. The CFPB is also very savvy in monitoring social media sites and has indicated it
does so to identify complaints against companies for the purpose of bringing enforcement proceedings.
If your dealership plans to open its own social media site, or if your employees access and use such sites, it is a
good practice to adopt a Social Media Policy. Such a policy needs to balance the dealership’s right to protect its
image and confidential information against the employee’s protected speech, such as speech intended to organize
labor unions or engage in concerted activity. Some guidelines for a Social Media Policy are to define social media
broadly to include all social networking sites, blogs, photo or video sharing sites and chat rooms. Make it clear that
the dealership is monitoring employees’social media usage on the
dealer’s site and from dealer-issued PCs and mobile devices,
and encourage employees to be responsible and
vigilant with their own personal pages. You should
identify with specificity categories of prohibited
topics such as, dealership financial or pricing
data, customer information and a catch-
all of “other confidential information.”
Prohibit disparaging comments about the
dealership, customers, other employees
and offensive or legally actionable
statements. Employees posting on an
auto-related site need to make clear
that their postings are their own and not
those of the dealership and you should
identify restrictions for using social media
during company time. The policy should
list consequences for violations, including