This past weekend, popular social media accounts, all managed under the group Meme2020, helped Mike Bloomberg go “viral” dropping memes relating to his Presidential campaign.
This type of branded content, also known as “sponcon,” is not a new phenomenon. Over the last few years influencers, social media personalities with significant followings, have become the frontlines for advertisements. Most influencers market consumer goods and as such must abide by Federal Trade Commission regulations, namely the Advertising Disclosures Guidance for Online Influencers released in 2019. Under these new guidelines, influencers must disclose the nature of any post advertising a product they were paid to promote. Whether that payment be cash, gifted products, or a combination of the two, the post must contain a disclosure typically in the form of #ad or #sponsored. These “dotcom disclosures,” apply to political branded content, to some extent, but in lieu of specific guidelines it is unclear how such content should be treated. Bloomberg’s campaign strategy marks a shift that, while not unexpected, falls within a gray area of regulation which the FTC and FEC (which regulates political ads) have yet to address.
For several years now digitally-fluent politicians have infiltrated social media platforms using their personal Instagram and Twitter accounts to disseminate messaging to America’s young voting sector. This sort of political speech is fiercely protected by the First Amendment. But speech created by individuals on behalf of political candidates in exchange for money, has yet to be contemplated by any regulations. The FTC and FEC are unlikely to release any new regulations before the end of the 2020 election, but this week Facebook, which also owns Instagram, revealed its own guidelines for political branded content.
In response to the influx of Bloomberg sponsored posts, Instagram’s parent company Facebook reversed its previous policy which tried to bar political branded content. Facebook established new guidelines that will allow such branded content so long as influencers disclose any paid partnerships with political campaigns in a similar fashion to the requirements imposed by the FTC. Facebook spokesperson said “we’re allowing US-based political candidates to work with creators to run this content, provided the political candidates are authorized and the creators disclose any paid partnerships through our branded content tools.”
Facebook will not include political branded content in its public ad library, a tool that saves information about advertisements and companies that pay Facebook to disseminate. If the branded post is “boosted” by a Facebook tool, then it could be subject to the ad library requirements. The ad library catalogues ads and analyses them to make sure they are in line with community guidelines. Political ads are subject to even more stringent disclosures.
Interestingly, Facebook has a no fact-checking policy for political advertisements, so leaving branded content out of the public ad library, begs the question of whether such posts will be subject to fact checks. Facebook has provided third-party fact checkers with “guidance” on which posts to check: if the speech is clearly that of a politician, the content will not be fact checked, if it’s that of the creator it may be eligible. It is unclear how exactly these guidelines might be enforced although it is important to note that the guidelines could be materially impacted by regulations imposed by the FTC and FEC in the future.