Blogging and Disclosing

I got a fair amount of e-mail over the last week or so asking me what I thought of the Federal Trade Commission’s new guidelines regarding bloggers and their disclosures of relationships with advertisers (This is a pdf link to the guidelines, which go into effect on December 1). In the grand tradition of not especially well-thought-out governmental decrees, it’s not particularly clear what the effect will genuinely be for bloggers who get sent things to write about by hopeful companies, including (in my particular case) book publishers. Ed Champion tried to get clarification from an FTC spokesperson on the matter last week, to no real effect, and at the moment things seem a little slippy, in terms of what happens if a blogger doesn’t give appropriate disclosure.

For myself, I don’t think this is a real problem, since as a personal philosophical matter and from my experience as a professional journalist, I think disclosing biases and business relationships is what you should be doing anyway. I don’t think it’s any particular secret that the vast majority of the new books I talk about here (or feature in The Big Idea) are sent to me for free by their publishers in the hope I will make mention of them one way or the other; I also don’t think it’s any particular secret that much to the despair of my wife’s sense of order, I hang on to most of the books.

The idea that I will be materially swayed by the receipt of a book to speak glowingly about it is a little silly — some days I get a dozen books, so I would be spending all my time swaying — but I have no problem disclosing how I came into possession of books or other objects I discuss/review/vent about, and allowing readers to calibrate their expectations accordingly. That’s just good sense and laudable transparency. I may put up a permanent disclosure page just to have it, but then, I don’t really see this as much of a problem.

I do suspect in a general sense there needs to be clarification from the FTC as to who these guidelines affect, however. My sense of it is that if the guidelines are a tool to go after spam sites and the sorts of folks who are hoping to port payola into the online world, and to keep advertisers from crossing an ethical line, there’s not going to be much of an issue. If the FTC goes after some schmoe who got a free book from a publisher and wrote about the book without disclosing how he got it, I suspect the shit will hit the fan, and quite rightly so. Hell, I’ll be there flinging poo into the blades. My strong suspicion is the guidelines are intended for the former scenarios rather than the latter one, but again, clarification won’t hurt.

In any event, I don’t see this guideline changing much of how I do things here. I already disclose, and would even without the FTC prompt.

76 thoughts on “Blogging and Disclosing

  1. Yeah, I have more or less the same response as you. I get sent free books all the time, far more than I can mention or read (hell, it’s a nice perk), and from time to time I mention them on my blog. I also mention books that I pay for myself from time to time. Is there a great scandal going on here? Um, not that I can tell, but if I need to say, oh by the way, Bantam sent me this free copy of this book that I’m saying, “Oooh, it’s nifty,” or, “uh, this thing sucks dead bears,” I guess I will, although if I and similar bloggers are the target of this FTC ruling, then the folks in the FTC really need to focus on some real issues.

  2. I’ve heard the intention is to get those who are using blogs or twitter to advertise through celebrities or individuals while making it seem that said blogger is making the choice on their own sans compensation. Does Louis Vuitton get less traffic if some celebrity admits the company paid her to tweet about her new handbag? I don’t know. Oh yeah, I, also, don’t care.

    Cheers!

  3. I agree completely with you, John. I’ve been blogging about food for a decade or so now, and I have a column for a local magazine. I regularly get cookbooks, nonfiction about food, and even the occasional novel with a food angle from publishers. I’ve always disclosed that when I write about them, because that seems the common sense thing to do. The same is true when I receive samples of food, and it would be true if the fine, fine people at Viking ever send me a range.

    I’m also considering some sort of blanket statement on my website, along with a general caveat that I make when someone emails me asking if they can send something to me. “I’m happy to receive just about anything you want to send me, but I can’t promise to write about it, or write positively about it if I do.” It’s only when I’ve neglected to send that message that I’ve encountered any problems whatsoever.

    The tricker issue, for me, is when a restaurant wants to “comp” me something. I generally turn that down, unless I’m dining on the invitation of a publicist.

    However, if you are a “regular” at some restaurants, it’s pretty common for the chef or owner to send out a little something extra with your meal. I’d hate to think the FTC would come down on me for writing positively about a meal, but failing to disclose that I didn’t have to pay for a glass of wine, or to try some new dish the chef wanted me to sample.

  4. It must be nice to have people send you stuff hoping you’ll blog about it…

    The main reason I felt moved to comment, though, is the mental image of John flinging poo. Combine that with the image from Airplane!, and, well…

  5. My strong suspicion is the guidelines are intended for the former scenarios rather than the latter one, but again, clarification won’t hurt.

    It’s not the intent, it’s the application.

  6. I’m curious to see how this affects commercial sites. There have been several examples on a commercial SF-related site where I’ve read a gushing movie review and by sheer coincidence happen to notice a paid ad for the same movie elsewhere on the site.

  7. The problem is real, and disclosure matters, for items of significant value (not most books; iirc items under $30 are exempt).

    But it’s unfair that bloggers are targeted and newspapers &c are exempt.

  8. NPR talked about this a while back, and they specifically mentioned the burgeoning “mommyblog” movement – where women decided to start writing about what it was like being a mom. In some of those cases, the blogs became quite popular, and were getting thousands of hits a day, and over time they started to look more and more like infomercials instead of the informal, personal blogs they’d been.

    Now, some of those bloggers were simply saying “Hey, this is a great product, I’m using it…” without disclosing that they were, in fact, using said product entirely for free. And prior to this new FTC ruling, there were no restrictions on that as there were on TV, where the fine print often tells you that they are paid testimonials or an actor portrayal.

    In general, if the law is tightened up a bit, I’m all for it. I think it only makes sense to see, as much as possible, the potential biases in play.

  9. I always thought the complaints about bloggers touting something on the basis of getting something for free smacked of sour grapes, particularly on the part of so-called “literary” writers. Usually, it’s more, “Why didn’t I get sent something?” or “He must have been bribed because I hated it!”

    Both arguments are best left behind when one reaches ten years of age, and most commonly are left behind during freshman year at college.

    This regulation strikes me as a “Do Something Dammit!” law because some people just can’t figure out that interwebs thangy. (Look, it’s simple. It’s a series of tubes.)

  10. Do you declare the value of the books you receive as income on your taxes? That was the other wrinkle in the process that I didn’t appreciate. The last thing I need is the IRS coming to say that I accepted a book as payment for a review and that I will now be audited into the ground for “hiding income.”

    I don’t get many books. You, on the other hand, look like you might actually be able to “open a second hand bookstore” just like the man said in Ed’s interview.

  11. But it’s unfair that bloggers are targeted and newspapers &c are exempt.

    But are they? Certainly every newspaper that I have ever read contains disclosures of possible conflict, and the reviewers always pay for their meals/travel, etc., or disclose that they haven’t in the article.

  12. Does fearing payola on the interwebs even make sense? It’s not like broadcast radio, where there’s a limited amount of airspace, and thus the music industry can pay-off the station owners with relative ease.

    What are they going to do, buy off the internet? Soon as one blog becomes a tool, we’ll just go to another.

  13. Back in the day, I worked for a newspaper that would calculate, at the end of the year, all of the prices of free tickets its reporters had gotten and used to cover events. Then it would send that amount to the sports teams, theaters, etc. They once ran a story about improprieties in security at their biggest advertiser.

    That news organization is long gone, and the ethics they followed were never widespread in the newspaper biz. Saying nice things about products gotten for free…or refraining from critical evaluation of an organization that buys a lot of advertising…is, alas, endemic of profit-conscious media.

    What bothers me about the new FTC rules is not the notion of mandating disclosure. It is, instead, the singling out of bloggers in several places…and the lack of any indication that the FTC will go after traditional media outlets and practices.

  14. I’m one of those schmoes that get an occasional book from one publisher and post on them sometimes(I have two now that I haven’t read and are not likely to).
    I’m not even sure how I got on a critic’s list and the traffic I get is certainly not enough to influence sales to any great degree.
    But if I’m going to start getting grief, or whatever, from podting on them, I guess I will have to stop.

  15. The problem here is two-fold. The first is a freedom of speech issue. Why should the government care WHAT my motivation is for writing about any topic? Didn’t this used to be a free country? Whatever happened to “buyer beware”?

    The second issue is one of over-broad regulation. I am very uncomfortable with a regulation that, on its face, would prohibit a host of benign activity but which, we are asked to trust, will only be enforced in limited “egregious” cases. If the regulations as written rely primarily on “prosecutorial discretion” to maintain the reasonability of the regulatory scheme, you can bet some government official is going to abuse that discretion at some point.

    In the mean time, even without any enforcement actions, most others are going to alter their behavior to avoid being the test case for enforcement of an arguably unconstitutional limitation on free speech. Which is exactly what they want you to do. And the terrorists statists win.

  16. @19
    “Whatever happened to “buyer beware””

    The Ford Pinto

    No seriously, that’s the textbook case where government finally put on it’s big daddy pants and said “I’m sorry, but you can’t make cars that kill a large cross section of the people who drive it if your argument is, ‘But if we fix it, it will cost us money!'”

    Obviously regulating bloggers is a far cry from saving the lives of motorists, but if we’re talking about buyer beware, that’s your answer.

  17. Ben-

    The Ford Pinto is actually not a good example. The Pinto was exposed by investigative reporting from a free press (such as Mother Jones magazine) and by private lawsuits.

    The NHTSA looked hard at the Pinto, but ultimately ruled that the Pinto had no “recallable” problem. (According to Wikipedia).

    I’m not saying there is no place for government regulation. I am saying that freedom of speech is absolutely the last place for such regulations.

  18. I suspect that what the FTC meant to do was codify the difference between viral marketing and being a tool (anyone remember the Science of Sleep debacle?). That’s the best reason I can see why they would exempt newspapers–astroturf blogs are a kind of unique phenomenon.

    But of course, reviewers and other bloggers that have a care for their reputations already behave ethically, and astroturfers will find ways round the guidelines (or just ignore them, because the consequences appear to amount to “a stern talking-to”). And in the meantime, the FTC’s got wildfires to put out all over the net because there’s all kinds of confusion from bloggers about what this means for them, when the real answer is “not much, actually.”

  19. When I saw this, I immediately thought “Oh good, they’ve cured cancer and homelessness and have moved on to the SERIOUS problem facing the nation: Bloggers getting swag!”

    On the one hand, I totally support the idea behind this. Yes! One *should* disclose origins of swag as it pertains to reviews and whatnot. On the other hand, really? Somebody thought it was worth dragging the government into this? It makes me sad.

  20. On what grounds does the FTC have the authority to regulate what I say about anything, much less products I wish to discuss?
    They can take their guidelines and shove ‘em.

  21. Seems kinda silly to think that the gift of the free book would influence a review…I mean, isn’t the value of the book based on whether or not it was any good?

    Danielle Steele could give me all the books she wanted…it’d hardly induce me to call them decent.

    I suspect that if you really want to look at reviews that are improperly influenced, it would be more important to look at site ads then “gifts”. Knowing the reviewer got a $20 book makes me far less queasy than having a link to the author’s Amazon store. In the latter case, the reviewer has a direct financial incentive to give a good review.

  22. OC Domer @19

    How is this a freedom of speech issue? The regulation doesn’t say that you can’t write about things you received for free, just that you have to say so if you did. That isn’t really a violation of free speech, more like holding up truth in advertising.

  23. @26:

    The regulation doesn’t say that you can’t write about things you received for free, just that you have to say so if you did.

    Compulsory speech IS a freedom of speech issue. Being forced to speak and not being permitted to speak are two sides of the same coin.

  24. melendwyr@27: There are a whole raft of speech restrictions that fall under commerce. All trademark law, for one.

    Plus, while on the one hand, rules about whether a blogger should have to disclose getting the book s/he reviewed for free are somewhat lame, it’d be an entirely different story if a publisher were to, say, give a blogger $10,000 under the table in exchange for a good review. There have to be rules.

  25. It’s not a freedom of speech issue. There are specific exemptions for ‘commercial’ speech, which being paid (either in cash or in kind) to endorse a product is most definitely.

    The issue is that the precedence will be set by case law – they mention bloggers that regularly get products *because* they review products and are influential in the space as being covered, but someone who starts of getting the occasional one and then this increases, at what point to they have to declare. This is not clear and it won’t be until they have cases. They built up the cases for the other kinds of endorsements since the last review in the early 80s, the coverage of bloggers will do the same.

    The other interesting point I see is that if you do receive a freebie and you don’t like it and you say that, then it’s not endorsement, so you don’t have to declare an interest.

    One other thing that needs to be known is the impact of liability. If a blogger makes a claim that is untrue (and I’m guessing this is particularly relevant when it comes to medical or financial products) then they are going to be held liable (along with the advertiser), so care needs to be taken with what you write.

  26. *rolls eyes at #28*

    Astroturfing is disgusting… but it’s not something that government should be involving itself in. And any extension of authority is something that we should be paying attention to, if only to be certain that it doesn’t affect us.

    I’m afraid there’s nothing in these new rules that applies only to “huge corporations”, Farber.

  27. Erik:

    “Truth in Advertising”? You mean when, for example, a Congressman or a Senator votes on a bill based upon who let him borrow his beach house for a week, but tells us all about it ahead of time? Or because his wife’s cousin is the VP of a company that will benefit from his vote and he posts that information in a press release on his website so we’ll all know about his conflict of interest?

    Or when a reporter from CNN gives a favorable slant on a politician because the politico invited the reporter to his office Christmas party and it really impressed his girlfriend at the time, but the reporter tells us all about that bias before he airs the story?

    Oh, wait. Congressmen and Senators and “real” journalists never tell us why they really voted for a bill or reported a story. Truth in advertising is never for THEM. It’s only for US.

    There used to be a saying in this country, and you almost never hear it anymore. Whatever happened to “It’s none of your God d@#ned business!”

  28. #29: “There are a whole raft of speech restrictions that fall under commerce. All trademark law, for one.”

    None of which should exist.

    “Plus, while on the one hand, rules about whether a blogger should have to disclose getting the book s/he reviewed for free are somewhat lame, it’d be an entirely different story if a publisher were to, say, give a blogger $10,000 under the table in exchange for a good review.”

    The only difference lies in your perception.

    “There have to be rules.”

    Nope.

  29. I thought this was designed to be less a case of outing bloggers getting swag and more a case
    of bloggers getting swag and a written statement to post as their own opinion on the blog. So that companies can’t pretend to be people. Or start fake people blogs of their own.

    Or, like if we checked out the site here one day and Scalzi was all like:

    “The Blumenthal fat fry has never damaged the quality of life of any of it’s users. Rumors of spontaneous combustion are highly overrated. Do not trust these people. Trust me. Buy the Blumenthal Fat Fry – Its Fry-Tasty!”

    Not one ironic mention of bacon. So, of course we wouldn’t need the FTC to break down any doors to alert us that John had been taken over by lizard people posing as advertisers. But others won’t be so fortunate.

    Does anyone really have a hard time telling the difference between paid, professional product pimping and everyday blather?

  30. how is this rule going to effect John’s future business providing dramatic Youtube performances of elementary student’s short stories?

    If he posts the link here does he have to disclose how much he gets paid for it?

  31. I agree that there’s a free speech issue here. For the FTC to regulate commercial speech is one thing, but since when do they get to DEFINE commercial speech? Because that’s what they’ve done here, and yes, I have a problem with that.

    Overly broad, certainly; these regulations make no distinction between companies that pay people to endorse their products and university presses that send out free books in the hope that a new title will get noticed. The “expectation of endorsement” needs to be defined differently in publishing than in other areas of commerce, if we don’t want to see the number of book reviews plummet even further. Particularly reviews of lesser known books.

    From a practical standpoint, I’m concerned because the FTC spokesman has said that ANY positive comments about something you haven’t paid for constitute an endorsement, and require a disclaimer. So if someone sends me an advance copy of a book, and I like it, I have to disclose that everywhere I comment. Not just my blog, but in discussions on other blogs, and on Twitter. He specifically said that 140 characters was long enough to include a disclaimer. My disclaimer is going to be #FUFTC. I hope that’s good enough.

  32. melendwyr@33: Want to buy a new John Scalzi book? It’s called “Defense of the Obin”. You can be sure it is a John Scalzi book because it says “John Scalzi” on the cover.

    I’ve also got an Apple Powerbook running OS/X that you can have for only $500. It has the Apple logo on it an everything, so you know it is genuine.

    Oh, and need any bread? I’ve got a loaf of bread I can sell you. You can be sure that it has no sawdust as “sawdust” doesn’t appear anywhere on the ingredients.

    I can sell all these things to you real cheap because there are no pesky government regulations about commercial speech raising my costs.

  33. I am going to have to really look into this. I have so many questions and don’t have time to read the 88 page PDF at the moment.

    I do reviews all the time as part of my job. Some of the stuff I get for free and others I do not. If its free I say something along the lines of “thanks to the wonderful people at____”. My reviews are both positive and negative. I tell it like it is.

    Now here is a point I think is tricky. How are they going to know if it is a Canadian blog vs an American blog? They cannot tell Canadians they have to disclose. How are they going to monitor this? They can’t go by IP since the host could be in any number of countries.

    As well I work for an American media company. Now even so I work for them and manage the station, I am an independent contractor, so how is that going to affect me and my employees/contractors who are from around the world, work for a licensed American media outlet and blog about a product?

    I have a lot of reading and research I see now. This appears to be a very tricky thing.

  34. Just a thought that the discussion would make a lot more sense to those who have actually read the guidelines, a link to which Mr. Scalzi thoughtfully provided.

  35. Steve 37 and hope 39: You don’t get it. The crazy “every person for himself, everybody has to be massively informed or risk poisoning or being defrauded” libertarian nutbars think all that is JUST FINE. They think if you can’t tell a genuine Apple from a fake one, you deserve to be defrauded, and if you are dumb enough to feed your baby formula without doing expensive laboratory tests on it first, your baby deserves to die.

    Your examples won’t change their minds, because they are crazy, evil, or both.

  36. I download the latest Debian and report that it installs and works wonderfully on my xyz laptop, noting that many other distributions, even of Debian, haven’t done that. (Debian is a Linux operating system distribution, distributed under a variety of free licenses, for those who don’t know.)

    This is, obviously, an endorsement of a product I have not paid for.

    (Yes, I pay for my internet access, but I could do this at the local coffee shop for free. If you think that’s too big, Free42 is tiny, works on many platforms.)

    I think that 88 pages of legalese is just too flipping much; if you can’t define this to-be-regulated activity in a page, go away and try again.

  37. htom, wouldn’t it be great if we could make that a requirement for all legislation? If you can’t describe what the problem is in less than a page then you get no law.

  38. I can’t believe so many people are comfortable with the federal government presuming to such an expansion of its powers, nor that so many are willing to take “Oh, but of course we’ll never make a finding against *you*” as a good-faith promise.

    Depending on the government to use its discretion wisely is a serious mistake.

  39. #37: Wanna buy some electronics? You know they’re safe, they have the “Underwriter’s Laboratory” stamp on them.

    Tell me, which branch of government is responsible for the UL?

    #41: I don’t need to possess massive expertise – I merely need to know how to identify the people and groups that do, and then listen to their recommendations.

    It’s the same thing as being an informed voter to determine whether the government watchdogs are doing their job properly – only it works even better. What, you think the FDA does experiments to ensure the drugs you take are safe? Those tests are done by the drug makers – and they have an unfortunate tendency to only report the results that make them look good.

    Only fools expect governments to do their thinking for them… but then, that’s the point, isn’t it.

  40. Some of the comments on the “Government” are exceeding nominal drama limits.

    It’s similar rules to why MSNBC mentions they’re part of a partnership with Microsoft every-time they do a story on something related or involving Microsoft.

    Not everyone is as forthcoming as John in their relationships and to say this rule is “silly” is to undercut the power of “cult-of-personality” behavior is a bit much.

    People make purchasing decisions based on recommendations all the time.

    This is just expanding existing editorial and journalistic ethics laws that haven’t killed too many innocent puppies and kittens to Bloggers and other online mediums.

    It’s not the ushering in of Stalin America.

  41. htom @42, it’s actually not “88 pages of legalese”. But it does take some time to look over. Probably not much more time than speculative commenting does.

  42. The revision, specifically the one mentioning blogs, seems to focus on requiring bloggers to disclose “material connections”. Sure, you can boil it down to “free demos” but you can also build it up to “free boats”. This is revisions to an already existing code that was last revised in 1980 as well.

    Relationships like this usually are managed by the industry or consumer (ex: Game review sites being exposed as giving inflated reviews to sponsors and damaging their trust). However, since the last revisions to these laws were made prior to the internet, the revisions don’t include from what I see any mention of sinister amendments that aren’t instead, revisions to aging laws surrounding endorsements and testimonials. (Ex: Before and After, etc).

    From the FTC site:

    “The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.”

    Now I know you can’t trust the source as their robot overlords have surely omitted cruel amendments harboring codes allowing the production of Soylent Green. However, it’s the best source regarding what the law means at the current time.

  43. @46– Testify.

    @44– “Depending on the government to use its discretion wisely is a serious mistake.”

    I would note that depending on the market to create positive societal outcomes is also a mistake. The most recent financial woes simply being an example of finding an unregulated area of the market and exploiting it.

    @47– “Ethical codes and legal restrictions are not the same thing.”

    So not a libertarian, but an anarchist? How do you deal with those whose moral codes do not comport with your own? Or those for whom there is no morality (such as “corporate” persons?)

  44. Not that general discussions re: libertarianism and the role of government aren’t fun, but let’s actually try to keep the conversation focused on the actual FTC guidelines and how they relate to bloggers.

  45. At least the good news is that most of the guidelines’ content seems to be addressing Astroturfing, which simply isn’t a factor for most bloggers.

    Even the bloggers who want to promote something their company is doing and don’t want to mention the specifics of their connection for some reason will probably never have a problem for having done so, although they may technically be in violation.

    That isn’t the issue.

  46. 31: “I’m afraid there’s nothing in these new rules that applies only to ‘huge corporations’, Farber.”

    If you, at some point in the next three years, turn up a cite of a non-corporate blogger being fined, please do drop me an email; I have no doubt such an event will be major news in the blogging world, to be sure, and I’ll eat a small and tasty hat if it happens.

    “And any extension of authority is something that we should be paying attention to, if only to be certain that it doesn’t affect us.”

    And in no way did I say that anyone shouldn’t “be paying attention.”

    #38: “How are they going to monitor this?”

    They won’t be. As I quoted and linked:

    [...] There’s no monetary penalty, in terms of the first violation, even in the worst case. Our approach is going to be educational, particularly with bloggers. We’re focusing on the advertisers: What kind of education are you providing them, are you monitoring the bloggers and whether what they’re saying is true?

    [...]

    That leaves one big question on everyone’s mind: How is this going to be enforced?

    RC: I realize there are hundreds of thousands of bloggers out there. Enforcement on a case-by-case basis–that’s not even a realistic approach.

    I’m not sure where this is unclear.

    “This appears to be a very tricky thing.”

    Not remotely. a) an ordinary blogger has no worries, period; b) put up a single sentence disclosure on any blog post where you’ve received a freebie that you’ve received a freebie, and you don’t even have any remotely theoretical worries. That’s all you need to know, and as “tricky” as it gets.

    Unless you’re running an advertising agency, or some huge corporation that’s trying to do an astroturf campaign or some other misleading campaign that uses bloggers. That’s who is targeted here.

    #45: “Only fools expect governments to do their thinking for them… but then, that’s the point, isn’t it.”

    Only rude people announce what fools other people are for not sharing their opinions. Or maybe it’s the mark of a truly superior intellect. Reader’s choice.

  47. Lovely imagery, as usual. :P

    Yeah, I don’t really see a problem with it. Like many laws it could be used to punish people who shouldn’t be punished by any stretch of common sense, but like those laws it probably won’t be.

    Of course, I don’t get my books free from anywhere at the moment, being a complete non-entity.

    While humbling, this does reduce any worries I would have, allowing me the complete freedom to say whatever I want about anything.

    To no effect.

    *sigh*

    Anyone passing out moneyhats? I’ll take one!

    Well, okay, no I wouldn’t…

  48. 53: “Even the bloggers who want to promote something their company is doing and don’t want to mention the specifics of their connection for some reason will probably never have a problem for having done so, although they may technically be in violation.”

    Correct.

  49. If you, at some point in the next three years, turn up a cite of a non-corporate blogger being fined, please do drop me an email; I have no doubt such an event will be major news in the blogging world, to be sure, and I’ll eat a small and tasty hat if it happens.

    But that’s totally not the point. I don’t want to live in a Legalist society, and anything that brings us closer to that execrable state needs to be discussed and examined very closely. Then annihilated.

    If a law is not going to be enforced as written, and everyone thinks that’s a good thing, then the law needs to be rewritten or abolished.

  50. @53 Well said.

    The little guys won’t have the FTC knocking at their doors (someone like me) regarding this law. The FTC doesn’t have that kind of budget to police the internet.

    Also, it’s always on the shoulders of the FTC when it comes to burden of proof when violations occur and penalties are case-by-case similar to any law that conflicts with the FTC Act.

    John’s approach to disclosure isn’t what their targeting.

    This guideline is after the more sinister, guerrilla marketers who are actively working to be manipulative, dishonest or the like through use of endorsements, misleading testimonials, and the like. Things like Astroturfing (http://en.wikipedia.org/wiki/Astroturfing) or other types of false-authenticity that knowingly are taking advantage of word-of-mouth, grassroots or community recommendations/etc that blogs and other social media components.

    (Sony faking a blog to promote their game systems, etc).

  51. Except blogs that are started merely to promote something by pretending to be ‘just plain folks’ never have enough content to be believable – and tend to be found out by interested bloggers who do some digging.

    I never trust recommendations – or warnings – I find online unless I know something about the person giving them. And even then I temper their advice with good sense. (There’s no way I’m drinking Coke Zero, no matter how much He-With-The-Mallet likes it.)

  52. I don’t get why this is a big deal.

    You get free goods from someone who wants you to write about them, you should disclose. Its what travel writers do when airlines/resorts pay for their travel, as an example.

    I want to know when I’m reading a review of any product if the manufacturer/publisher of said product tried, in any way, to influence what was said. If you don’t want to risk regulation through reviewing free books the solution is very simple – don’t review free books. Pay for them. Otherwise a minor disclosure would seem to cover your ass perfectly sufficiently, and it is no practical impediment to doing whatever you want.

    Oh and Melendwyr, please don’t bother telling me I’m being an evil oppressive free speech crusher. You seen to be a free speech/libertarian fundamentalist, and that’s fine, really, but it does mean you’re operating on what appears to be a very different metric to every other person commenting on this thread.

  53. htom #42: I think you could argue, probably successfully, that you purchased a license for the distribution at Full Market Retail Price, as stated in the license itself.

    I agree that the practical effects of this to the common blogger are going to be nil. I also note that laws that lend themselves to selective enforcement are a very good control mechanism – there’s no crime named ‘dissing cop’, but there’s enough laws on the books that if you do, you’ll be made to pay for something that someone treating the police with Proper Respect won’t (of course, if you unexpectedly end up having influence, you might get beer at the White House).

    This regulation seems to be tailor-made for ‘blogging while unfavoured’ charges – and I bet that if Gary Farber #54 does have to put ketchup on suede, it won’t be someone reviewing ‘the new fry-tastic’, it’ll be ‘the new anarchist’s cookbook’ or ‘the great FTC payola scandal’.

    Yeah, we know what they’re going after, and they may be right to go after them, and they may need this kind of regulation to do it. Of course, no country has current experience with Laws to target RIOT being used for PAT, right?

    Seriously, though, I assume that reviewers didn’t pay for the item unless they tell me. If they do tell me and didn’t pay for it, that’s much more sleazy than if they didn’t pay and don’t tell me.

  54. @59 Whether or not a minority of readers can discern through extended research that a certain blog is promoting a biased review, recommendation or astroturfing isn’t the issue though.

    It’s the remainder of readers who were manipulated in whatever course the information was intended to do that is at the core in regards to consumer protection.

    It’s easy to say these marketing schemes are easy to spot but that’s just categorically not true. It’s also not just about false-mustache schemes, it’s about celebrities, advertisers and high-personalities exploiting trust.

    As you said, most times its the consumer revealing this just as it is with most consumer deceptions. The difference is now those same consumers have legal recourse when these acts are discovered.

  55. #61 Valid points. Yet, while there’s plenty of evidence of the perils of laws being perverted from their original purpose, there’s also plenty of evidence regarding the perils of non-regulation.

    Regulation can’t always be associated with oppression just as Freedom shouldn’t always be associated with anarchy.

    This is advertising regulation for consumer protection, plain and simple. Unless you’re a shifty marketer or on the take from one, I’m sure you’ll all be fine. No one’s coming for your megaphones and picket lines waving an FTC flag just yet ;)

  56. 57: “But that’s totally not the point.”

    YM “that’s not my point.”

    Also: FTC Clarifies Blogger Guidelines: ‘We’ve Never Brought a Case Against Somebody Simply for Failure to Disclose.’

    [...] Meanwhile, FTC assistant director Richard Cleland tells PRNewser that even the $16,000 number doesn’t apply. “It doesn’t matter whether it’s $16,000 or $11,000. The root problem here is that reports that there is a monetary penalty for violating these guidelines is untrue. The FTC does not have the authority to impose a fine for a violation to the FTC act,” says Cleland who heads the FTC’s division of advertising practices. “There is a provision that allows for a proceeding in federal court that allows for imposing of a monetary penalty for violation of trade regulation laws. The guidelines are not trade regulation laws.”

    Cleland also said the blogger or endorser would not be fined, but the advertiser would. “We have never brought a case against a consumer endorser and we’ve never brought a case against somebody simply for failure to disclose a material connection,” he said. “Where we have brought cases, there are other issues involved, not only failing to disclose a material connection but also making other misrepresentations about a product, a serious product like a health product or something like that. We have brought those cases but not against the consumer endorser, we have brought those cases against the advertiser that was behind it. If people think that the FTC is going to issue them a citation for $11,000 because they failed to disclose that they got a free box of Pampers, that’s not true. That’s not going to happen today, not ever.”

    Meanwhile, my browser shows me a post from John that starts: “I got a fair amount of e-mail over the last week or so asking me what I thought of the Federal Trade Commission’s new guidelines regarding bloggers and their disclosures of relationships with advertisers….”

    It doesn’t, on my browser, show a post that starts “I got a fair amount of e-mail over the last week or so asking me whether I want to live in a Legalist society” or a post asking whether or not that would be an execrable state, or what the proper role of government is.

    I even see a comment, #52, in which someone says “…let’s actually try to keep the conversation focused on the actual FTC guidelines and how they relate to bloggers.”

    Your Browser May Vary.

  57. I think I’m of the few who are not so neutral on this issue. An importnant question one needs to ask (of someone who gets dozens or hundreds of books a year) is how does the number of reviews/pimps for free books compare to the number purchased with one’s own cash. I could easily see the number of books reviewed tilting toward the freebies (not that it HAS too, but how is one to know?) and that clearly violates at least the spirit of the rules. Of course, just bc John doesn’t sell his freebies, doesn’t mean that no one does either. There is a somewhat similar issue in academia where we get “desk” copies, and there’s a substantial industry of people going around buying up these freebies and thus defrauding the publishers. Some institutions (and I believe, some states) have rules against this, but the fact of the matter is I’ve never worked anywhere that I didn’t get hounded several times a semester about whether I have any books to sell. And no, I don’t think I have to declare these as income, unless I was unethical enough to sell them.

  58. The new reg would indeed allow the FTC to go after anyone who could remotely be considered to have failed to to disclose.

    That they may not intend to be nitpicking about picayune violations is besides the point — they would have the ability, and the law would be on their side. And such abilities tend to be abused at times.

    In particular as applies to blogs, the interview with Richard Cleland of the Bureau of Consumer Protection that John linked stands out. Cleland says that if an individual reviewer (such as our host) keeps a book (which John does) that counts as “compensation,” which mandates disclosure. But if the reviewer were being paid by an outside source to do the review (the example used in the interview is a magazine reviewer) then it wouldn’t.

    That’s a pretty clear statement of the specific case, and Cleland answers it one way in that interview, then answers it somewhat differently in a different interview, dissembling into vaguery about “focus” and “intent.”

    So, if you fall into that specific case you’re dependent on the government never deciding to focus their intent on you. Because bureaucrats are such wise and noble people, government never engages in selective prosecution that would seem ridiculous to an impartial observer, does it? What if for some unforeseen reason someone in the Cleland food chain decides he just plain doesn’t like you, and decides to focus his intent on YOU?

    That’s the worry, and it’s a valid one. As any good attorney can tell you, it’s tough to get through a normal day without committing several technical violations of some law or another. Piss off the wrong bureaucrat, or simply be handy when they’re having one of those days, and you can find yourself in court. That the FTC’s remedies consist mostly of suit & fine rather than jail time does not alter the problem much.

  59. This isn’t just about free goods – there are several companies that wlll offer to pay bloggers for reviews. If you have enough traffic, you can get $50-$500 for reviews.

  60. This law will do very very little good and be a big pain in the ass for some decent person. You know some dumbass will abuse their power and use the law in a way it wasn’t intended.

    Just once I would like to see the government get rid of a law, well, at least get rid of one that doesn’t pertain to Wall Street.

  61. The problem remains that the rule treats traditional media differently than non-traditional media, so there is an equal protection argument to be had. The FTC response to that was that the individual reviewing a book (in their example) did not personally benefit, the newspaper did. I don’t see the difference, of course, but it’s also factually incorrect. Traditional media book reviewers almost certainly keep the books. As has been stated elsewhere, there are no “libraries” of review copies at the papers in question. Facts shouldn’t interfere with making a political point, though.

    The fact that the FTC intends to arbitrarily and capriciously enforce a bad rule doesn’t make it a better rule.

  62. “In January 2007, the Commission published a
    Federal Register notice seeking comment on the overall costs, benefits, and regulatory and
    economic impact of the Guides.”

    Good thing we’re all complaining now.

  63. Seems to me that, in the context of book-reviewers, this is a matter of tempest & teapot. I think pretty much everyone connected with the field is aware that publishers distribute a considerable number of free copies to known or hoped-for reviewers — there isn’t any “connection the average person wouldn’t expect” here, and I don’t think mainstream media Reviewers have traditionally felt any moral imperative to mention it.

    They _do_ have a moral (& reputational) reason to be honest about their evaluation of the book if they’re writing at any depth, and mention bad points if they discern any.

    John has, on this blog, done some rather gushing “reviews”/notices of books he likes and which were written by his friends. I think that’s perfectly acceptable for such brief & casual bits, especially since he so often mentions the personal relationship involved. I’m reasonably certain that if someone offered him, say, $50 to publish a favorable review, he’d mention this — for some flavor of “mention” that would probably involve either physical violence or a highly-memorable string of words.

  64. Xopher 74: Maybe you didn’t notice the blog overload waving his mallet? It would have been a bigger mea culpa otherwise, promise.

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