Recently, the Joint Commission on Public Ethics (JCOPE), which oversees lobbying rules and regulations in New York State, published a Notice for Comment that should interest any person or entity that uses social media in public relations campaigns, advocacy efforts or to influence public officials. Specifically, JCOPE is soliciting informal comments on potential guidance regarding the applicability of the Lobbying Act (Leg. Law Art. 1-A) to social media activities.

Parties should be aware that JCOPE recently sought comments to an advisory opinion regarding the Lobbying Act's reporting obligations for parties who are compensated for consulting services that involve contact or interaction with elected officials as well as involvement in grassroots lobbying. In the past, persons who performed consulting work for certain grassroots activities were not required to register as lobbyists. JCOPE, however, has now shifted its view on the subject and has sought comments to a proposed advisory opinion that would require consultants involved in certain "grassroots" lobbying campaigns to register as lobbyists in New York State.

In light of this proposed advisory opinion, as well as given the seismic changes in communications and rapid adoption of alternative channels of communication by consultants and registered lobbyists to advocate positions, JCOPE has decided that it must consider whether or not these forms of communication should be regulated. Specifically, some of the questions JCOPE will address include:

  • When does social media activity constitute direct lobbying?
  • Must a communication be made directly to a public official via social media outlet (e.g., posting on a public official’s social media page or tweeting at a public official) to be considered direct lobbying?
  • When does social media constitute grassroots lobbying?
  • Can a statement by one person ever be attributed to another? For example, are statements made by an organization’s members on their personal social media pages attributable to that organization?
  • When lobbying statements are re-posted, retweeted or otherwise amplified, when are the statements (and associated costs) attributable to the original author, as opposed to the subsequent “reposting entity”?
  • Is an online post or tweet that provides a hyperlink to a lobbying website reportable activity?
  • What are the expenditures made in connection with social media activity that could be considered “expenses” under the Lobbying Act?

These, and many others, are the kinds of questions that JCOPE seeks guidance on from the public. This is a great opportunity for your company to voice its concerns, questions or provide thought leadership on this developing issue with wide-ranging implications. Comments should be submitted to Martin Levine, Director of Lobbying and FDS Compliance and Senior Counsel, at martin.levine@jcope.ny.gov, no later than January 11, 2016.