[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
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.
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.]
Tagged as:
accolades,
bloggers and the law,
Federal Trade Commission,
FTC endorsement rules
- Boy fatally shoots stepbrother at home, mom sues school district as well as shooter’s family [Seattle Post-Intelligencer]
- Problem gambler sues Ontario lottery for C$3.5 billion [Toronto Star]
- Cop declines training in which he’d be given Taser shock, and sues [Indianapolis Star]
- Ultra-litigious inmate Jonathan Lee Riches scrawls new complaint linking Bernard Madoff, Britney Spears [Kevin LaCroix]
- Just to read this update feels like an invasion of privacy: “Judge to Hear Challenge to $6M Herpes Case Award” [On Point News, earlier]
- “Best criminal strategy: join the Spokane police” [Coyote Blog] More: Greenfield, Brayton.
- Will mommy-bloggers be held liable for freebie product reviews? [Emily Friedman, ABC News, earlier]
- Update: “Fifth Circuit says no bail for Paul Minor” [Freeland]
Tagged as:
advertising,
Canada,
Federal Trade Commission,
Indiana,
Jonathan Lee Riches,
lottery,
Paul Minor,
police,
public employment,
schools,
Washington state
