On The FTC New Guidelines On Blogs And Disclosure

I looked up "blog swag" and this is what I got (courtesy Flickr user Gwen)

Waves were made in the blogosphere last week as the FTC released new advertising guidelines. The updated rules caught up to the 21st century by dictating guidelines for blogs and websites. The latest news caused a number of blogs I read to quickly disclose their relationships with PR folks.

One of the blogs mentioned above happens to be my co-worker/book blogger Gayle, who posted a link to a PC Mag article that explains the new rules:

Specifically, the new rules would require bloggers to clearly disclose what type of results they should expect to receive from a product. Currently, advertisers only have to display a small “results not typical” tagline if they feature an endorser who had an unusual level of success with their product. Now, they have to disclose what the average consumer should expect.

Meanwhile, bloggers must disclose material connections with advertisers: were they hired by the company’s ad agency? Are they receiving payment or free products? Do they have a relationship with the company? Decisions about violations will be made on a case-by-case basis, but if someone receives cash or an in-kind payment to review a product, it’s considered an endorsement.

So if I was to write something, anything on a product (good or bad) that I  received for free I could be held liable if I don’t disclose that I got said item for free. It makes sense that the FTC wants the consumer to know if a positive review may have been influenced by a free product, but if I wrote up an honest review slamming a product, I could be held liable if I forget to mention it was sent to me for free? I think the guideline is a tad harsh, not to mention a completely higher standard than what traditional media is held to.

While for most bloggers this only means a vigilant effort to constantly drop legal disclaimers and disclosures; I think the guidelines could discourage some to write anything in the first place for fear of litigation. The LA Times agrees with me:

But the commission’s examples of what constitutes sponsorship set an unreasonably low threshold for blog posts to be treated as ads, potentially turning ethical lapses into violations of federal law. Merely receiving review copies of games, gadgets or discs for free — as critics in traditional media routinely do — could bring bloggers under the FTC’s purview. The commission argues that the guidelines probably wouldn’t apply to professional journalists, and that amateur bloggers would just have to disclose the freebies. Yet the risk of $11,000 penalties could easily discourage some would-be reviewers and harm sites that rely on amateurs to rate products and services.

The Wall Street Journal also makes the point that traditional media is lavished with freebies all the time yet hardly ever mention it:

And yet even newspapers with the strictest of ethics rules accept free copies of books for review. Movie, music and theater reviewers get their tickets comped. The scribblers covering sports aren’t in the habit of paying skybox rates for their privileged perches at the stadium. While newspapers make no secret of these common practices, they don’t plaster warnings on every book review or description of a football game. But that’s exactly what the FTC is requiring of bloggers.

Take my friends who were given free Nintendo DSis as part of a blogger outreach campaign. The campaign did its job and they wrote about the party and their freebies. They all mentioned that they got them for free and thus covered their asses. But what about future comments and posts that mention their toys? Imagine this post on October 13, 2010:

I was bored to tears waiting for my flight at Reagan, good thing I brought my Nintendo DSi with the latest Mario Kart game. It really made my plane ride enjoyable- in fact I  wouldn’t fly without it. (Legal disclaimer: I got my Nintendo for free last year at a party thrown by Nintendo, your results may vary.)

If I had to write that every time I mention anything about my DSi I might just save myself the trouble and not mention it ever again.

And how about reviews on websites like Amazon? When I’m shopping online I find those reviews helpful, but will people write a review if they could all be investigated for potential fraud? The Wall Street Journal writes, “when a lousy book gets an effusive five-star rave from an anonymous Amazon poster, do we need the feds to warn us that it just might be the author’s mother typing away?”

The answer is no, I hope we have become savvy enough to realize not to trust one review or rating, that’s why sites like Amazon allow us to rate reviewers and gives metrics on how many top ratings a product receives.

When I heard about the release of the new guidelines I instantly recalled a post written back in May by Penelope Trunk. She was ahead of the curve on this and made a really good point that conflict of interest is different for bloggers than traditional media- we have much more to lose by recklessly selling out:

So we don’t need stupid rules about conflict of interest for people who are putting themselves on the line. That rule is for old media, where writers were putting only the brand of the newspaper on the line. In old media most journalists were no-names, writing under big (newspaper) names. So if they wrote something moronic, so that they could increase the value of a stock they held, or, maybe, get more oral sex, they would put only the newspaper brand at risk. Not their own.

As the City Captain for DC Metblogs I receive pitches and products all the time, in fact a few weeks ago I happy to see I got a free book and dvd in the mail. Am I going to review both? Yes. Will I disclose that I got both for free? Of course. But if I didn’t and I wrote a bad post that wasn’t what I truly felt about the film, it would be more than just “fraud.” That kind of cheap writing is transparent to readers and would probably result in me losing readers. If you read a poorly written review in the Washington Post, it wouldn’t exactly cause you to stop reading the paper- you know that it was just some no-name writer writing one small piece of an entire newspaper. As for me, my entire reputation is at stake with every post I write- that’s my face and name on the banner.

The bottom line is this: It makes sense that the FTC wants to make sure the consumer is protected now that people are turning to the Internet for information and reviews. However at the same time, the consumer is already demanding of transparency and won’t trust someone that isn’t. What I’m most afraid of is the possible step backwards this will be for some bloggers and businesses. The web has democratized so much and the actions by the FTC can be seen as a way to reel it back in.

Related posts:

1. DC Blogs = New Favorite Blog

Tagged as: FTC, Social Media