Tuesday, October 6, 2009

Bloggers and the FTC

A new decision from the Federal Trade Commission creates questions about what constitutes blogging and what are really ads masquerading as honest review.

Right away, there's a problem of definition.

The FTC ruled Monday that bloggers must disclose any "material connections" for items they've received for product review. I'm not seeing anything that indicates a price minimum. The idea is to stop people who represent themselves as honest critics from taking, in essence, payoffs for writing favorable reviews, and, as the Los Angeles Times describes it, is the FTC's "first attempt to impose order on the largely unregulated world of blogging."

Certainly it is that but it immediately raises more questions, starting with, who's a blogger? If you work for the Daily Bugle but your copy winds up online, is that blogging? What if one of the duties from your newspaper job means occasionally posting web-only stuff, even though most of your work goes into print? Is there a difference? Does the First Amendment prevent the FTC from applying the rules to newspapers?

  Most newspapers I'm familiar with have enough pride, not to mention rules, to not allow the arrival of free review copies of, say, books, to affect their reviews. Quite the contrary, there's often a perverse pleasure taken in not allowing any influence over the review. That sense of not getting paid off, even with a cheesy little item, is part of the newsroom culture.

At a couple of newspapers I'm familiar with, the often-substantial number of review materials, from books to computer games to food samples, winds up being sold off to staff, with proceeds going to charity.

That actually works pretty well and everyone benefits.

What the FTC is trying to control is either the planting of information about a product or deliberately tainted reviews in order to collect free goods. Some of those products are expensive--if you're talking a game console or other computer-related products, you could be into the hundreds of dollars.

The FTC says it's main interest is advertisers, that companies stop the practice of creating fake endorsements, or misleading claims excused by "results not typical" disclaimers and that it will go after bloggers only if there are repeated complaints. (Penalties could reach $11,000 per incident.)

The problem I have with this, though, is who this applies to. I can't see the FTC going after a quality and trusted writer for a mainstream publication but what about operations that live on the web and have clearly well-established experts who write about products all the time? The people at places like TechCrunch and Mashable?

Are bloggers automatically less trustworthy than those who write primarily for print? I'd say sure, a few of them, but certainly not all.

The lack of clarity and ever-changing means of delivering information will complicate any FTC enforcement. I can't see how this stands up for very long unless the FTC really does intend to target advertisers and not writers.

Here's the FTC guidelines.

And, in the interest of free disclosure, I receive lots of books for review on many sites. The most recent batch wound up donated to a school organization for use in raffle baskets.

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