140-character assassination: Are disclaimers and disclosures needed, or even possible, on Twitter?

Summary:* Jennifer Leggio is at RSA ConferenceGuest editorial by Chris GatewoodEach of them being famous in part because of their lack of self-censorship, Courtney Love and Mark Cuban probably surprised no one when they (separately) got themselves in trouble for mouthing off via Twitter.  The reported 140-character assassination engaged in by these two famous folks raises a few questions for those of us who aim to be more judicious in our online tweeting, blogging, and other postings.

* Jennifer Leggio is at RSA Conference

Guest editorial by Chris Gatewood

Each of them being famous in part because of their lack of self-censorship, Courtney Love and Mark Cuban probably surprised no one when they (separately) got themselves in trouble for mouthing off via Twitter.  The reported 140-character assassination engaged in by these two famous folks raises a few questions for those of us who aim to be more judicious in our online tweeting, blogging, and other postings. Beyond the ethical considerations for online journalists, there are also regulations and laws forbidding misleading advertising and marketing practices.  Many employers would also appreciate some wall of separation between the tweets of their personnel and what might be a different company line.

Journalists and bloggers have become accustomed to leveling with their audiences and protecting their credibility by using disclosures ("CNET News and ZDNet are owned by CBS Interactive") and disclaimers ("these opinions are mine and not my employer's").  But how, exactly, can anyone make full disclosure in the 140 characters allowed by Twitter?  The answer, of course, is that you can't.  The kinds of statements that have become common in the bloggers' world and elsewhere will not fit in a tweet.

For most tweets, the speaker's profile information and linked site will provide a level of disclosure for those interested in the tweeter's angle on the world and any potential biases.  This is how many bloggers currently manage disclosures and disclaimers already, even though blog posts are not bound by the tight length limits of Twitter.  For example, Jennifer's disclosures are here and here. Because a Twitter profile containing the speaker's profession and one or two affiliations, even when accompanied by a link to their blog or web site, will probably not cover all bases, short in-tweet disclosures such as "my client" (9 characters) or "my biz" (6 characters) will also help with transparency.

Working toward full disclosure for its own sake, or for the sake of enhanced credibility (the gold standard of social media) are motivation enough for most Twitter users and blog owners.  For those who need another nudge toward transparency, the Federal Trade Commission's recent attentions toward bloggers and social media might do it.  Perceiving a problem with misleading product reviews and other commercial commentary by bloggers, proposed amendments to truth-in-advertising regulations have a new focus on blogs and social media.

Rules that are not yet in effect, but that are headed that way, are directed at untrue or misleading statements about products or services reviewed on blogs or in social media.  The real concern here may not be false statements as much as it is misleading statements.  A statement like "the Dell Adamo is beautifully executed" is a matter of opinion, and not really true or false.  On the other hand, if someone got a "long-term loan" of a new product and published a review, the fact of the long-term loan is helpful to the reader's understanding of any bias that might drive a better-than-evenhanded review.

Would these new FTC regulations apply to tweets? They aren't final or yet in effect, but in all likelihood, they would.  So many tweets include links to blogs and other online content that the leading tweeting is probably not separable from rules that apply to blogs themselves.  If no link is included with a 14-character comment, any stand-alone commentary on the platform that is most commonly referred to as a "micro-blogging" site would also seem to be captured by any legal strictures on blogging and social media regulations.

So the carrot is transparency for credibility's sake, and the FTC is working on the stick - new rules that could create legal problems for any misleading advertising or marketing practices.  Bloggers, tweeters, and other social media commentators and marketers should bear in mind both the carrot and the stick.  Mark Cuban and Courtney Love are members of the club of people who have tweeted their way into legal problems.  As they have learned, one mode of communication is pretty much as good as any other for putting your foot in your mouth (or in quicksand, or in a bear trap).  It's not the medium, it's the message.

Chris Gatewood is a lawyer practicing in the areas of intellectual property, new media, and entertainment. He is based in Virginia with the firm of Hirschler Fleischer.  He tweets at @gatewood5000.  This article is commentary of general interest and is not legal advice particular to your situation, or on which you should rely.

Topics: Social Enterprise, Browser

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