Required FTC blogger disclosure

by Walter Olson on October 8, 2009

Publishers sometimes send me books in hopes I’ll review or at least mention them. I occasionally attend free advance screenings of new movies (typically law-related documentaries) that filmmakers hope I’ll write about. This site has an Amazon affiliate store which has from time to time provided me with commissions after readers click links and proceed to purchase items, though it’s been almost entirely inactive for years. I get invited to attend the odd institutional banquet whose hosts sometimes give away a free book or paperweight along with the hotel meal. I’ve been sent “cause” T-shirts and law firm/support service provider promotional kits over the years, pretty much a waste of effort since I don’t much care for wearing such T-shirts and am not exactly famed for posts that sing the praises of law firms or their service providers.

Under new Federal Trade Commission guidelines in the works for some time, I could apparently get in trouble for not disclosing these and similarly exciting things. In addition, the commission’s scrutiny will extend to areas less relevant to this site, such as targeted Google advertising and results-not-typical testimonials.

Robert Ambrogi at Legal Blog Watch finds it hard to see why the blogosphere has raised such a big fuss about these rules. After all, the rules (to be precise, “guidelines” backed by government lawyers with relevant enforcement powers) make clear that nondisclosure of a single minor freebie will not in itself suffice to trigger liability but instead will be counted “among several factors to be weighed” in evaluating the continuum of behavior by individuals engaging in social media (it seems the rules also apply to Twitter, Facebook, and guest appearances on talk shows, to name a few). FTC enforcers will engage in their own fact-specific, and inevitably subjective, balancing before deciding whether to press for fines or other penalties: in other words, instead of knowing whether you’re legally vulnerable or not, you get to guess.
StackofBooks
Like most authors I know, I wind up donating most review copies I receive to local library sales or other charities. (As Ann Althouse and Cory Doctorow both hint, the accumulation of review copies for disposal quickly becomes more of a burden than otherwise, which is why I spend much more time trying politely to talk publishers out of sending me copies than trying to talk them into it.) But in an extraordinary interview that should be read in its entirety, the FTC’s point man on the rules, Richard Cleland, surreally suggests bloggers should instead return review copies to the publishers — who don’t want them back! — after taking a look.

Among interesting disclosure posts by well-known bloggers: Tyler Cowen/Marginal Revolution, Virginia Postrel/DeepGlamour, Martin Schwimmer/Trademark Blog. Other notable reactions: Jack Shafer, Slate (“The FTC’s mad power grab. … preposterous … The guidelines have to be read to be believed.” ); Patrick at Popehat (“Next on the FTC agenda: fines for hotlinking and failure to hat tip … Yes, I believe in the slippery slope.”); Jeff Jarvis, Amy Alkon, Dan Gillmor (“you get the sense of a government-gone-wild travesty…unworkable in practice”), HIPAA Blog (“unconstitutional”), Washington Examiner (editorial: “No self-respecting journalists should lend their endorsement to [the FTC's planned Dec. 1-2 workshop on journalism], and neither should any professional journalism organization.”)

Finally, for the last word, Ann Althouse:

The most absurd part of it is the way the FTC is trying to make it okay by assuring us that they will be selective in deciding which writers on the internet to pursue. That is, they’ve deliberately made a grotesquely overbroad rule, enough to sweep so many of us into technical violations, but we’re supposed to feel soothed by the knowledge that government agents will decide who among us gets fined. No, no, no. Overbreadth itself is a problem. And so is selective enforcement.

(& welcome readers from Instapundit, Ron Coleman (who points out that he was on this issue earlier than any of us), ShopFloor, Dave Zincavage, Jonathan Adler/Volokh, Megan MacArdle/The Atlantic, Darleen Click/Protein Wisdom, Declan McCullagh/CBS (with some very kind words), Mickey Kaus (scroll to P.S. “I’d link to…”)). And (10/21): Jason Kottke’s Kottke.org, K2/DaddyTypes.

[Followup posts here and here.]

{ 11 trackbacks }

Shopfloor » Blog Archive » The FTC, Regulating Speech by Bloggers — A Horrible Plan
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So much stupidity, so little time [Darleen Click]
10.08.09 at 9:34 pm
Advice Goddess Blog
10.09.09 at 9:41 am
FTC vs. bloggers, cont’d
10.09.09 at 3:47 pm
Internet Idiocy « Tai-Chi Policy
10.10.09 at 10:16 am
Blawg Review #233 | Popehat
10.12.09 at 7:05 am
Buy This Book « The Legal Satyricon
10.12.09 at 12:13 pm
Breadth of FTC blogger regs
10.13.09 at 10:30 am
Advice Goddess Blog
10.19.09 at 3:05 am
Federal Trade Commission Takes on New Media | The New Paper Press
10.22.09 at 3:02 am
I Get This Stuff For Free: New coverfolk received under new FTC guidelines for bloggers — Cover Lay Down
10.24.09 at 10:11 pm

{ 23 comments }

1 Scott Lazarowitz 10.08.09 at 1:39 pm

I hope the recent September 12th rally in Washington and the Town Hall debates on Government-Controlled Medicine are signs of the American people telling the government that our private lives are none of their business, and our affiliations and associations and who pays us and why they pay us are also none of the government’s damn business.

Just another part of the Feds’ plan to start censoring–in blogs or otherwise–what the Feds don’t like, and, yes, these nudniks will be politically “selective.”

2 J Richardson 10.08.09 at 2:42 pm

I kinda like Say Uncle’s FTC disclosure myself –

http://www.saysuncle.com/2009/10/06/endorsements-3/

3 Andrew 10.08.09 at 2:55 pm

These rules are ultimately backed by men with guns. The price for disobedience, if taken to the extreme, could be your life.
I wish more people in power, from town councils to our Congress, would consider this before making laws and rules.

4 Richard Blaine 10.08.09 at 3:06 pm

Well, what the heck. I figure I commit at least three felonies before I get out of bed each day, and another three before breakfast. Under today’s laws, damn near every thing one does can be spun by a prosecutor into a crime against the state. Another drop in the bucket doesn’t seem to matter. (As long as I can keep under the radar of the authorities. Or on their good side. If I can’t, they already have plenty to work with.)

5 Amy Alkon 10.08.09 at 3:26 pm

the accumulation of review copies for disposal quickly becomes more of a burden than otherwise, which is why I spend much more time trying politely to talk publishers out of sending me copies than trying to talk them into it.

This is the case in my case as well.

I was troubled to get an e-mail from a paper that runs my syndicated column that put all their writers on notice, “We don’t take freebies.” Well, I’m certainly not for sale — but is a review copy of a book a “freebie”? I buy a number of books that I mention in my column, but I can’t afford to buy every book in press that might be relevant. And what do I do if I want to mention or quote from a book I’ve gotten for free in my column? This impedes free speech and the free flow of information.

The marketplace corrects for sleazy recommenders. If I recommended books that weren’t of value to my readers and blog readers, I’d fast become a “skip” instead of a “read,” and I’d have to get a job at a gas station.

And as I said in my disclosure rant on my blog, I’m not for sale, but if I were, it sure wouldn’t be for the price of a trade paperback.

6 Disgusted 10.08.09 at 4:02 pm

What I am disappointed about is that this rule let’s big busines corporate media off the hook as far as disclosure, unless a reporter is directly receiving compensation. His/her manager or the corporation itself can be compensated in some way and not disclose it because the FTC has determined that I would not care. Starts at bottom of page 46.

http://ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf

Bull. This kind of class warfare bent is not what I expected from the Obama administration at all. I hope people will write and complain about this bias. The rule itself is not ethical because of that.

Also, will big government entities like the CDC will have to disclose financial gain from the technologies they license and also regulate? They have a website, too, after all.

Search for: ‘market share’, ‘profitability’, ‘freedom’, in this.
http://www.cdc.gov/od/science/techTran/May_2009_Brochure.pdf

7 Phyl 10.08.09 at 4:13 pm

As a Canadian book blogger, I say “FUCK YOU” to the FTC. And invite American publishers to get their Canadian branches to send us Canadian bloggers TONS of books, and we’ll happily review them all.

thumbing nose at American police state

Serioiusly. It’s insane. Isn’t it time for another Revolution down there or something?

8 JSinAZ 10.08.09 at 4:38 pm

Phyl, given the situation with the Canadian Human Rights Commision up there (ref Ezra Levant), I’m not quite sure why you seem so at-ease with respect to your ability to say what is really on your mind – presuming it’s something other than state-approved goodthink. Seems that your countryfolk have already started on their own little engsoc experiment.

9 Todd Rogers 10.08.09 at 5:03 pm

The FTC as U.S. Handicapper General – Vonnegut was so right.

10 Sandy MacHoots 10.08.09 at 5:41 pm

This kind of class warfare bent is not what I expected from the Obama administration at all. I hope people will write and complain about this bias.

Seriously? It’s a two-fer. First, it will allow the FTC to cow wrong-thinking bloggers with threats — hence, the very broad discretion. Second, if it can make web advertising and viral marketing dangerous, ad money will flow back to newspapers and TV, who will be very grateful.

11 Joanne Jacobs 10.08.09 at 6:08 pm

When I agree to take a review copy of a book, I’m doing the publisher a favor. Right now, I’ve got five books sitting reproachfully in my office begging to be read. Yes, I actually read books before reviewing them, even though I no longer get paid by newspapers to write book reviews.

As you say, if a blogger recommends books or products that are lousy, readers will figure out the blogger is unreliable and stop reading. It’s entirely self-correcting.

12 L Nettles 10.08.09 at 7:28 pm

All this while my TV sends lies to me for hours each day, what BS. Weight Loss, Colon Cleansers, Male Enhancement, statins ect. and they want to do something about bloggers!!!!

13 Reformed Republican 10.09.09 at 8:53 am

To me, presenting selective enforcement as a virtue is the scariest part. Not only are the admitting that they will only enforce it when they feel like it, but they want everyone to be happy about it? I just cannot get my head around it.

14 Wacky Hermit 10.09.09 at 8:54 am

So let me get this straight: if I have a small business and produce a product that I sell on Etsy, and I also have a blog, and I have a similar friend that also has a business and a blog, and my friend sends me a birthday present and I send her a birthday present, and I discover she’s hit some hard times and could use a bit of business and I link to her site and say “go give her some business,” I’m in trouble?

Why are they criminalizing everyday social interactions? Like the lady in Michigan who was told she was running an illegal day care for keeping an eye on the neighbor kids for 15 minutes between when their parents left for work and when the bus came, not charging them anything or feeding the kids?

15 Amy Alkon 10.09.09 at 9:44 am

I put this linkback to this post of yours, on a blog item to the Obama Nobel this morning. In it, I recommended a terrific book, The Narcissism Epidemic: Living In The Age Of Entitlement (and I hope you’ll edit this blog item, Walter and link the book to you on Amazon, and make a few shekels, because it’s really good).

P.S. Oh, and fuck you FTC, nobody sent it to me for free, and I’m still recommending it.

What can we do about this FTC asininity, if anything — other than posting churlishly?

16 mojo 10.09.09 at 12:46 pm

Some of the non-US based blogs are being nastily dismissive.

Go figure.

I don’t think the FTC actually comprehends the nature of the internet.

17 ras 10.09.09 at 5:11 pm

So if, for ex, a US blogger incorporates a co to run his blog, and all gifts are received by the corp and the blogger/owner works for the corp, then the FTC rule becomes moot, correct?

The blogger could retain ownership of the domain name (leased back to his co) and run the biz per se on a breakeven basis, thereby adding an additional layer of legal separation in case of lawsuit. Also correct?

I’m not saying that running an end-around on the FTC’s power grab is the best way to go – fight, fight, fight – but as a path of least resistance, I could see a lot of bloggers choosing it even as they oppose the FTC on principle.

IANAL … am I missing something?

18 Todd Rogers 10.09.09 at 5:26 pm

I read through this, again. Back to the first question of politics, Who gets what and how much? Find the money trail and so too will you find the origin of the stupidity.

19 kimsch 10.09.09 at 11:17 pm

Does this apply to some newspapers, magazines, cable, and broadcast outlets that appear to be wholly owned subsidiaries of the DNC?

20 Chris 10.19.09 at 9:19 am

While I think the new FTC rule may be a bit overbroad and unwieldy in it’s application, I see nothing wrong per se with what is ostensibly the extension of consumer protection laws to new(er) forms of media.

If you have nothing to hide, then you should have no problem disclosing that you have received an economic benefit for your endorsement of a product or service. And sorry, while the rule may be, as mentioned, a bit unwieldy in its application, it is not in the least unconstitutional, and similar consumer laws have been upheld over the years by the courts, time and time again.

I guess unique situations make for strange bedfellows. While I certainly know that blogging is not unique to any particular ideology, and many bloggers are libertarians and/or conservatives, it is funny to read the more liberal bloggers now trumpeting the laissez-faire economic philosophy of the Wall Street Journal (that paper even had an editorial criticizing the new FTC rule). I imagine once the brouhaha dies down, people will just step in line, and if they don’t, it’s not like the FTC every had any plans to “go after” any but the most egregious violators. But really, what’s the burden of saying you were paid or dropping a causal line like, “I had the opportunity to try out___ when I received a free sample from ___?”

Is it as a I suspect whenever I read any supposedly “unbiased” review, blog, post, etc. of any product or service: I should take it all with a grain of salt and simply do my own research and then decide for myself because none of the blogs, “social sites,” reviews, etc. are worth a damn, much like the “unbiased” reviews and product promotions one can find in the “traditional” media.

21 Kermitt 10.20.09 at 1:42 pm

Chris: Are you serious?!

– “While I think the new FTC rule may be a bit overbroad and unwieldy in it’s application, I see nothing wrong per se with what is ostensibly the extension of consumer protection laws to new(er) forms of media.”

Well, somebody already gave at least one example of what’s wrong with it that also happens to rebut your naive belief that this is an extension of rules that already exist.

– Disgusted 10.08.09 at 4:02 pm

“What I am disappointed about is that this rule let’s big busines corporate media off the hook as far as disclosure, unless a reporter is directly receiving compensation. His/her manager or the corporation itself can be compensated in some way and not disclose it because the FTC has determined that I would not care. Starts at bottom of page 46.

http://ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf

Also, selective enforcement isn’t a problem for you? Why don’t we take that to its extreme and allow me to prove a point. Lets take the example of a lynching in the south 70 years ago. Is the local government complicit in the act because it elects not to prosecute the white lynch mob? Yes it is! Any law should apply across the board to anyone who breaks it. Instituting a policy of selective enforcement sends the message to do whatever you want, even murder, as long as it fits with governments agenda, whatever that may be. In this case we are talking about outright censorship of politically unfashionable ideals and unfavorable views on the current administration or in fact anything that the FTC decides they don’t like!

And you don’t see a problem with this?!

22 Velika 10.24.09 at 6:47 pm

I agree with chris. This is simply consumer protection. Readers have a right to know whether a blogger’s reviews are unbiased. I have stopped reading several blogs that became inundated with fairly obvious promotional posts. In many ways I think these rules will help blogs like these retain readership.

Keep ads to the navs! It’s the fair thing to do.

23 Barry Norti 10.31.09 at 5:10 pm

‘Chilling effect on free speech’ – violates the First Amendment. Nuff said.

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