Breadth of FTC blogger regs

by Walter Olson on October 13, 2009

“PatHMV”, in the Volokh comments:

…make no mistake, these regulations are broad. It’s not just that Joe has to say “I got a free bottle of detergent to review,” when he reviews that detergent. No, the FTC will have the authority to fine Joe if P&G [Procter & Gamble] periodically sends him free bottles of detergent or whatever and he ever writes about ANYTHING that P&G produces, even if they didn’t actually give him that particular product for free and didn’t even ask him to write that specific review. How much free stuff before that obligation kicks in? The regulations don’t tell us; it’s up to a “case-by-case determination” by FTC officials.

I don’t know much about detergent-blogging, so let’s substitute a couple of fact patterns more relevant to news, opinion and public affairs blogging. It’s been much asserted of late that it’s no particular burden to disclose when mentioning a newly published book or quoting from a newsworthy speech that the publisher sent you a review copy or the conference-giver let you into the hall on a press pass or its equivalent. But the regulations clearly contemplate broader disclosures than that. At some point, acceptance of such benefits will be deemed to create a relationship that must be disclosed even on other occasions, when, say, you mention an author or a nonprofit institution in a different context six months later.

An editorial in today’s New York Times, despite a bit of concessionary fluff about not wanting “to hamstring the ability of bloggers and twitterers to report and comment about the world,” enthusiastically endorses the new rules. It says not one word about the dangers of overbreadth, de minimis triviality, chilling effects, or selective enforcement. Nor (unlike the L.A. Times’s far more nuanced editorial) does it inform readers that the FTC is proposing in some respects to regulate social media more stringently than traditional media outlets such as the Times itself. Here’s the analysis from Citizen Media Law:

As noted above, a particularly remarkable feature of the “material connections” disclosure requirement is that it apparently does not apply to traditional media to the same extent that it does to online media.

The FTC’s justifications for this distinction are not entirely clear, but they appear to rely on two assumptions. First, the FTC assumes that traditional media exercises “independent editorial responsibility” in writing reviews and that bloggers and social media users may not. The FTC even suggests that reviews published on “an Internet news website with independent editorial responsibility” would be treated like those published in a traditional brick-and-mortar periodical. Guides, at 47 n.101 (emphasis added). Second, the FTC seems to assume that freebies for traditional news reporters are “reasonably expected by the audience,” whereas freebies for bloggers and influential Twitterers are not. These assumptions may be justified when the comparison is between sleazy buzz marketers and much of the traditional press, but they’re less convincing when the comparison is between serious online commentators and the offline press.

Earlier coverage here and here (& welcome Glenn Reynolds/Instapundit, Jonathan Adler/Volokh readers).

World-turned-upside-down alert: Daily Kos is making sense on the topic of how book reviewing works.

And: Daniel Kalder of the Guardian Books Blog speculates on why the NY Times’ editorial “purred with approval” of the new regs in such an “impressively superficial” way.

{ 3 trackbacks }

Instapundit » Blog Archive » MORE FROM WALTER OLSON on FTC blog-regulation overbreadth….
10.14.09 at 9:11 am
Book Blogging and the FTC « So Many Books
10.18.09 at 5:26 pm
How the FTC Process Works | Snowflakes in Hell
10.19.09 at 9:51 am

{ 15 comments }

1 GregS 10.13.09 at 10:51 am

These regulations just prove beyond any shadow of a doubt that in America today even the most microscopic of problems can be used to justify the creation of a massive new regulatory regime.

Amazing that in my lifetime I’ve seen America go from being a country 0f can-do, practical, results-oriented people to a nation in love, absolutely in love, with bureaucracy. Amazing.

2 Doug 10.13.09 at 11:46 am

Well, I have to agree. I even get caught up in the fear that something remote may happen to my children, when if fact it just won’t happen. This country just loves its bureaucracy. Those in power (not necessarily the politicians, but the career people in gov’t) have been able to stay in power by creating dependency and the belief in those served that they cannot better themselves. Every special interest group believes its cause is greater than someone else’s cause. They only want to keep themselves in control. This paternalistic belief is damaging this country.

3 Skip Oliva 10.13.09 at 11:55 am

Let’s also understand the process by which the FTC will enforce its rules. FTC regional offices will be spending their days combing the Internet looking for “violators”. Blog operators will then get a “demand letter” from the regional office demanding they either post certain disclaimers or remove offending posts. These letters will include a “consent order” admitting guilt without any sort of due process, as well as a lengthy financial disclosure form that provides the FTC with a complete picture of your personal and business finances.

The FTC doesn’t negotiate. You can’t call them up to straighten things out. Once the demand letter is issued, you have already been judged guilty. If you want to contest the charges, you’ll be hauled before an FTC administrative law judge, not a regular federal court. Even if you convince the ALJ to side with you, the FTC commissioners hear any appeals — and the FTC has a 100% reversal rate when the ALJs rule against FTC staff.

4 tekel 10.13.09 at 3:44 pm

Do the rules apply to comments posted on your blog? Because I think you should buy NEW! Tide(tm) Detergent with Bleach Alternative! It whitens my socks and gets those pesky grass stains out of the knees of my blue jeans! It tastes great sprinkled on salads and ice cream! It softens hard water and helps your crops grow tall and strong!

BUY TIDE!

The other day, I was saying to myself, man I sure am glad that I have 1st amendment freedom of speech on the internet protected by the Constitution. And hey, speaking of the Constitution, it looks pretty yellow in all those pictures you see. I bet it would be all shiny and white if we just used a little bit of TIDE to wash it every now and then.

You should buy some TIDE today. BUY IT NOW! OR I WILL STAB YOUR DAD IN THE FACE WITH A SCREWDRIVER

sorry about that last bit P&G told me they’d cut off my free supply if I didn’t make it edgy

BUY SOME TIDE TODAY! GREAT FOR WASHING YOUR CAT!

/disclosure: I once may have received a free sample of Tide detergent as a promotion for some other crap I bought. I don’t really remember.

5 Jonathan Bailey 10.13.09 at 4:07 pm

I wonder if the New York Times would endorse these regulations so enthusiastically if there were also a requirement for them to publish a disclaimer every time they regurgitate a press release from one of its advertisers as orignal news.

6 Georg Felis 10.14.09 at 9:47 am

This looks like a good spot for Civil Disobedience. If everybody made a post on their blog as follows, we could smother the FTC under a blanket of cruft:

I recommend you buy the following product [insert Amazon link here, I plan on linking to a camcorder]

I hereby state that it is no business of anybody, to know if I have received any product or reimbursement from Amazon or [product manufacturer here] in return for my glowing testimonial. The FTC can bite me.

Sincerely,
GF

7 Legal guy 10.14.09 at 10:20 am

These regs are out of control. Clearly, it is their intent to target someone and make an example early on. It’s just absurd. It does upset me that these regs are so tight online. But, what about print? What about television? Why the war on online marketing? It’s ridiculous.

8 Peg C. 10.14.09 at 10:23 am

As tekel reveals above, the answer to this is all bloggers and all blog commenters must embed product endorsements into every single blog post and comment from here on out. It would be like the tattletale whitehouse.gov site requesting anything fishy and getting absolutely swamped by all of us tattling on ourselves and each other.

ACT Total mouthwash is the best at preventing gingivitis!

See how easy it is?

Friskies Buffet

9 Steve Adams 10.14.09 at 10:44 am

Sounds like time for a change – I love the title of this book – you should buy it. to http://www.amazon.com/How-Overthrow-Government-Arianna-Huffington/dp/0060988312/ref=sr_1_1?ie=UTF8&s=books&qid=1255531157&sr=8-1

I hereby state that it is no business of anybody, to know if I have received any product or reimbursement from Amazon or [product manufacturer here] in return for my glowing testimonial. The FTC can bite me.

10 Maureen 10.14.09 at 10:46 am

Do people from the Times disclose all the cool parties they go to, with the people they write about, who are also guests? Do they demand that theater critics disclose that their girlfriend’s roommate from college is in the cast? No? Howsabout all the press releases they receive for free in the mail — do they talk about them? No?

What about if you got something free from somebody, and you don’t remember it? “There was an ink pen with their logo in my convention goodybag” is not exactly a relationship likely to create bias.

11 plutosdad 10.14.09 at 12:05 pm

I think this may be rent seeking by traditional media. As you point out there is no provision that traditional media have to make these disclosures, even though quite a few do receive freebies, others do not, and you don’t know who is receiving what unless they volunteer that information. In those cases, it’s even worse: people are trusting their magazines and newspapers to be unbiased when in fact many are not, but the FTC isn’t concerned about readers in those cases.

But individuals playing by the same rules? they must be stopped!

It’s a case again of regulation harming entrepeneurs and the “little guy” and helping out already established businesses. Traditional media companies (even their internet sites) can still portray themselves as bastions of objectivity, and as more bloggers get punished the older media can promote themseles saying “see? we told you not to trust them!” thereby attracting more eyeballs and advertising dollars.

I have to ask myself why the FTC has this bug about this. Someone must be lobbying the FTC to regulate these individuals. The only people who benefit from this regulation are traditional media and their reviewers.

12 Amy Alkon 10.14.09 at 12:11 pm

Walter, thank you so much for keeping on this and on the CPSIA. These things are so dangerous and so rife with possibilities for abuse. I now find myself unsure of whether I can mention books on my blog, vis a vis the rule — even books I’ve bought — if, say, they’re published by Random House, if Random House has sent me other books for free that I have not mentioned. Hellooo, chill on free speech!

Maybe they won’t come after me — probably they won’t — but laws and rules that exist can be used to abuse people who can’t legitimately be brought up on other charges.

What needs to be done to repeal this?

13 Crafty Hunter 10.14.09 at 1:16 pm

Who will volunteer to be the sacrificial goat who gets dragged through the courts in a very expensive and exhausting legal battle over the First Amendment?

14 Charles N. Steele 10.14.09 at 4:43 pm

I’d love to be the test case on this… but no one ever gives me any free stuff.

(hint, hint, hint)

15 Wacky Hermit 10.14.09 at 9:23 pm

Charles: if I send you a pair of baby booties, we can be the first joint FTC/CPSIA case and maybe kill two birds with one stone… :)

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