October 8, 2009
By Denise Ouellet
The Federal Trade Commission announced on Monday that it will now require bloggers to disclose when they are receiving any type of compensation in exchange for endorsing or reviewing a product, service or company. However, these regulations fail to consider the plethora of social blogs and forms of social media that may be subject to the guidelines and create a double-standard in the media industry in general.
The new guidelines are meant to cover not just traditional blogs but also other types of social media like twitter “tweets” and Facebook pages. That means that if a celebrity receives money from a company for mentioning or including ads from a company on his/her page, it will be subject to the guidelines.
While these disclosure requirements are intended to help Internet users discern what is real and what is just another form of paid advertising, they may do a lot more than that.
As others have already pointed out, there isn’t a lot of room to make a full disclosure in a 140-character-limited tweet, but more importantly, where is the line between a blog and just good old-fashioned communication? If you try to think back to when and why blogs came about, it wasn’t just because the Internet allowed the everyday common man to reach hundreds of thousands of readers with his thoughts on life, there was also an audience for blogs. If there hadn’t been, we would not have seen the rapid proliferation of blogs online and watched them morph into micro-blogs and other forms of social networking. The fact that there was an audience means two things. First, it means that were people were ripe to communicate, connect and share with one another in new ways and second, it means that people were ready to receive their news and information in less traditional forms of media.
The fact that people were ready to share and communicate does not necessarily mean that all the “sharing” is consumer-related, as the FTC would apparently have you think. In fact, the bulk of it probably is not. A huge chunk of communication that will fall under these guidelines are simple conversations and interactions betweens friends, colleagues and families. Just because it falls under the umbrella term of blogging does not give the FTC the right to regulate. Remember that the FTC gets its power from the Commerce Clause of the Constitution and is therefore (somewhat) obligated to remain within the realms of regulating interstate commerce. Our personal free speech amongst one another does not fall into this category, no matter how broadly it is interpreted.
Additionally, the line between what is just simple communication and what is an “endorsement” is very fuzzy in these guidelines. In the words of the FTC:
“The revised Guides […] 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.”
Let’s say a celebrity is paid by sponsor (“A”) and because of that relationship is contractually obligated to attend another company’s (“B”) event. At that event, the celebrity interacts with a new product or service, likes it, tweets about it then blogs about it on his site. Does the celebrity have a “material connection” with B? It’s not clear and arguments could easily be made to support either conclusion. While I appreciate that the FTC is trying to ensure the reliability of blogs and other social networking tools, it does not have the authority to guide our free speech and should work to ensure its guidelines minimally infringe on this right.
This brings me to my second point. Are our other source of information all that reliable? If people were ready to receive their information from less traditional forms of media, like blogs, isn’t that an indication of a fairly savvy consumer market? If so, then shouldn’t the FTC acknowledge that and either back off of the blog-related guidelines and realize that MANY other forms of communication and endorsement are not “guided” in this way. For instance, similar to my example above, if a celebrity is paid to attend a party for a magazine or brand, is that disclosed to consumers? No. Also, having worked in public relations for many years, I’m familiar with how a lot of magazine and newspaper publications work. Often times, products are chosen for review or included in articles because their companies cough up money to advertise in these or sister publications. Even in just Boston alone, it’s no surprise that bars/restaurants/hotels that top ranking lists are coincidentally all the same that advertise regularly. If the FTC’s goal is to make authors disclose “connections that consumers would not expect,” shouldn’t all of these be disclosed as well? Maybe not. Maybe consumers are savvy enough to figure this all out, so if they are, can’t we let the blogs carry on and hope that they’ll call each other out on any endorsements that are actually deceiving customers?
To read the full text of the new guides go to:http://ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf.
[It should also be noted that these guides are NOT laws and in order to impose a fine for violating a guideline, the FTC still bears the burden of proving a violation of the FTC Act.]