Welcome to the Simplifying Legal podcast, brought to you by Businessese. I’m your host, Danielle Liss.
Many years ago, someone told me I was the least lawyer-y lawyer she’d ever met because I helped make legal easier to understand. To this day, it’s one of the best compliments I’ve received in my professional life.
If you’ve ever felt legal was too scary, too overwhelming, too complicated, or just plain incomprehensible, you’re not alone. The Simplifying Legal podcast was created to help.
In each episode, we’ll do a deep dive into a legal topic and give you concrete next steps so you can apply it to your business.
My goal is for you to walk away from each episode thinking, oh, that was easier than I thought it would be.
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Hey there, I’m Danielle. Welcome to episode 40 of Simplifying Legal for Small Business Owners. Today, I’m talking about marketing on Instagram. More specifically, how to protect your business legally when you use Instagram for marketing.
Disclaimer: As always, before we get into today’s topic, a quick disclaimer. This podcast is meant to provide you with legal information only. It’s not legal advice and does not create any type of attorney-client relationship between us. Please don’t take any action without consulting your lawyer first.
Believe it or not, Instagram is only a tween! In just over 11 years, it has become a go-to for so many business owners as part of their marketing plans. Sure, sometimes we might get frustrated with the ever-changing algorithms or we might not want to deal with Facebook. But, overall, Instagram still remains a popular platform for visibility and engagement.
Like any platform, it’s critical that you consider the legal side of your business too. The goal of this episode is to give you an overview of some key areas to consider when you’re marketing your products and services on Instagram.
The first area we need to discuss is using testimonials on Instagram. Testimonials seem to be everywhere on Instagram. In so many discussions of marketing, especially in the online business world, there is talk of providing social proof. Usually, this is quotes, testimonials, or case studies from people who have used your product or service.
On Instagram, you might see a sponsored testimonial from a brand or a service provider posting in their grid with a success story from one of their clients. Testimonials are powerful tools and we need to look at them closely.
If you use testimonials, you need to know that the Federal Trade Commission (FTC), which monitors truth in advertising, has very specific rules on the use of testimonials from consumers. This is a topic I’ll be looking at more closely in a few weeks in an upcoming FTC series (which is more exciting than it might sound, I promise), but it’s important to cover in any discussion of using testimonials on Instagram.
Knowing that testimonials are an area that might receive some scrutiny in your marketing, what should you do? It’s important to remember that when you highlight how someone has used your product or service, in a testimonial, for example, it’s viewed as representative of your business. This leads to a really important question: do you have any evidence to substantiate their experience, other than the person’s individual claims? Can you show that it will work the same way for anyone?
If you don’t, it’s okay. Most brands probably don’t have this type of data. You don’t need to figure out how to get a double-blind study done. Instead, you need to disclose that the testimonial is the experience of one client and experiences may vary. Make sure you are disclosing that results may not be typical and could vary from person to person.
Additionally, when it comes to using testimonials on Instagram, you need to be cautious with releases. Do you have permission to share the content from your client? If you are using their image and name, make sure that the client has granted you the right to use their likeness and name for marketing purposes.
Many service providers include something about testimonials as part of their client agreement. This could be a simple paragraph that states that if a client provides you with a testimonial, you can use it in a certain way, which is typically for marketing purposes and they are giving you permission to use their name, likeness, and the content of the testimonial.
I am often asked if you can take screenshots of comments and use those as testimonials. My answer is, not surprisingly, it depends. If you run a course or group program, you may want to build this into your terms or contract. You might say that you reserve the right to post screenshots with the name and profile picture redacted.
However, if you state in your contract or terms that everything shared is confidential and you aren’t getting permission regarding testimonial usage, you need to talk to the client before posting.
So, to wrap up testimonials, remember:
- Be careful of making claims and state that results may vary; and,
- make sure you have permission before posting.
Beware of False Claims
Another area to be aware of when you are marketing on Instagram is false claims. You need to ensure that your content doesn’t mislead consumers. Like testimonials, this is monitored by the FTC.
The general rule is when you’re talking about your products and services, make sure that you are not including any unsubstantiated claims.
I find this is easier to describe with examples. Weight loss content is plentiful on Instagram, so an example might be an ad for a skinny tea that says:
You’ll lose 15 pounds in a week just by drinking this skinny tea.
This one hopefully seems pretty obvious. Unless you have a study that can replicate these results for everyone, don’t make claims like this. It is misleading and likely promises something that can’t be guaranteed for everyone.
But what about more subtle claims outside of the weight loss space. An example might be:
If you implement my 5-step method for growing your email list, your revenue will double in the next quarter.
Here, the claim is that your methodology will double someone’s revenue in a quarter. That’s a big claim since you have no idea who is viewing the content. Since you can’t guarantee future performance or income, don’t include claims like this in your Instagram marketing.
I love that companies have so much confidence in their products and services, but you need to be careful in how you phrase things. Instead, don’t make a claim so specific. Say, if you implement my 5-step method, you may be able to grow your email list and revenue in the next quarter.
And, I understand. This is where legal frustrates the marketers. I get it because I’ve been in that role many times when I do marketing reviews for clients. They want bold assertions and then I come in and say, nope, you cannot promise this and the language needs to change.
If you aren’t working with a lawyer on marketing review, you can look over your content and say am I making any claims or promises here? If so, can you substantiate them? If you can’t, rephrase it.
The next thing I want to cover is Instagram Disclaimers. In past episodes, I’ve talked a lot about the importance of disclaimers on your website to help protect you from liability for the information you publish. So how do you cover yourself if you are marketing on Instagram, rather than on your website?
First, let’s discuss what a disclaimer is. If you’ve consulted WebMD, you’ve seen disclaimers in action. It will say that the information on the website is for informational purposes only and it isn’t medical advice. Then it will usually tell you to go see your doctor. It might also refer you to a longer disclaimer, filled with lots of legalese, to give additional details on the company’s policies.
Generally, when you’re working in a field where people seek your products or services for the advice that you offer, you need to ensure you have the appropriate disclaimers in place.
Disclaimers are important, but it’s really hard to include that much text, along with the content, in an Instagram post that is limited to 2200 characters. So how can you add a disclaimer for Instagram?
In my legal practice, I have the pleasure of working with many licensed professionals and coaches who market their business almost exclusively through Instagram and we’ve done a lot of work to create solutions for this.
Since you don’t have the space for the lengthy disclaimer that you should have on your website, my go-to recommendation is a more condensed version of your website disclaimer that you publish in your Instagram Stories, then save as a highlight. Then, depending on the content of a specific post, you can then say, for informational purposes only, please review the disclaimer in my highlights.
We have a template for an Instagram Disclaimer in the Businessese shop, which I’ll link in the show notes, that has sample templates for some of the most common types of information that you may discuss on Instagram when marketing your products or services. It includes:
- Business growth and coaching
- Financial information
The template provides you with text you can use in the disclaimer, and from there, you can add your branding before publishing. And, the template is only $29.
The last area I want to talk about is handling DMs (Direct Messages). When you are marketing your products and services on Instagram, you want to see those DM notifications because that is usually going to be a warm lead.
Because I work with so many licensed professionals, I always advise being cautious in the DMs.
Don’t give specific individualized advice to someone unless you have a client agreement with them that outlines the scope of your relationship and how they may use the information you give them. You don’t want to invite any type of liability due to a claim that they inappropriately relied on your advice.
If someone asks you a question that requires a specific answer, you can redirect them to more general information.
Here’s an example (which, while it is not a direct quote, is a great example of the DMs I receive for Liss Legal):
I have a client who hasn’t paid me and they are in breach of their contract, what should I do next?
My typical response is something like:
I’m so sorry to hear you are dealing with that. I’m not able to give you advice on your specific situation without knowing more. Would you like to book a Strategy Session? Here’s the link to learn more.
When it comes to DMs, you should also discuss confidentiality. Let’s say you are a business coach and you are starting to screen someone for your services. Advise them whether or not the information being shared is confidential or not.
As soon as people start telling me specifics in a DM, I tell them that I will only review confidential information through other means, and only if they are a client. This is again to protect from any liability and to ensure that there isn’t a perception of a client relationship when it hasn’t yet been established.
This wraps up our overview of protecting your business when you are marketing on Instagram. Now let’s talk about today’s action steps.
- Do you market your products or services on Instagram? If so, do you have internal policies or standard operating procedures to ensure you are protecting your business? If not, it may be a good time to consider if you need to add any.
- Do you use testimonials on Instagram or do you make claims? Make sure you keep them FTC compliant. Also, if you are using testimonials, make sure you have permission before posting.
- Do you have an Instagram Disclaimer? If you don’t, is it something you need and should add? You can get on in the Businessese store at the link in the show notes.
- Does your audience DM you to follow up? Make sure you are cautious about the information you provide in DMs and be clear about confidentiality.
- Last, as always, if you have questions on how to protect your business on Instagram, please talk to your lawyer. This is a topic I discuss a lot with my legal clients, especially wellness professionals and business coaches. If you’d like to learn more, you can check out Liss Legal. I’ll include a link in the show notes.
Thanks for joining me for today’s episode. I’d love to connect with you outside of the show. Visit Businessese at businessese.com. To find show notes for today’s episode, visit businessese.com/podcast.
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