October 2009

[Bumped Monday a.m. with added links for readers who missed it on Friday]

My new article on the Federal Trade Commission’s very bad new rules on endorsements and social media is now up at City Journal.

Meanwhile, on Wednesday, the FTC held a conference call for reporters to dismiss concerns as unfounded. “They are not rules and regulations, and they don’t have the force of law,” said Mary Engle, associate director for advertising practices at the FTC’s Bureau of Consumer Protection — which may be narrowly true but is hollow reassurance at best, since the guidelines plainly are meant to signal where the commission intends to aim its future enforcement efforts, and since not all bloggers will be willing to defy the guidelines on the assumption that courts will refuse to go along with the FTC’s interpretations.

“We are not going to be patrolling the blogosphere,” Engle also claimed. “We are not planning on investigating individual bloggers.” And: “We’re not interested in playing gotcha in the gray areas.” And yet the guidelines are again and again written in such a way as to reserve the Commission’s discretion to do any and all of these things. Ann Althouse, as before, is rightly scornful:

Oh, good. You’re not planning…

I’m so relieved.

“We’re not interested in playing gotcha in the gray areas.”

Not yet. But once the law is on the books, will you never feel tempted? Nothing will motivate you to venture into the gray?

Of course the FTC, like other regulatory agencies, is frequently drawn into enforcement not because it has been patrolling some area as such, but because some interested party (a competitor, a disgruntled employee, an ideological critic, a litigation opponent) calls the attention of enforcement staff (or the press) to the purported violation. Is the FTC really saying, “Yes, we’ve declared blogging in such-and-such a manner to be illegal, but we’re planning to look the other way?”

More on the rules: New York Times (reactions in world of online fashion journalism); Dear Author (new rules “will be rife with abuse and misuse and uneven application”); David Johnson/Digital Media Lawyer; BNA TechLaw (endorsing agency reassurances); Robert Siegel, Mind Your Own Damn Business Politics (guidelines “might bite traditional media after all”).

P.S. Randall Rothenberg of the Interactive Advertising Bureau, a trade group, notes that in recent days “the FTC has been furiously backtracking about their implications, in an apparent attempt to soothe the blogosphere”, but calls the reassurances “disingenuous”. More: PaidContent.org (IAB considers the rules constitutionally dubious under First Amendment); Ars Technica. And some more new links:

• According to one report from a children’s literature conference, the FTC’s Engle says Amazon bookstore arrangements must be re-disclosed anew with each linked post, but — in a seeming departure from what colleague Cleland said a week ago — otherwise “independent” book reviewers need not disclose free review copies [A Chair, a Fireplace, and a Tea Cozy]
• Gordon Crovitz in Monday’s WSJ (FTC backtracking in face of reaction; “Do employees of a company have to disclose the fact of their employment every time they comment on its products through their personal Facebook accounts?”)

Tagged as: Federal Trade Commission, FTC endorsement rules, WO writings

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