Teh rules: FTC says bloggers must disclose free goodies

So it's finally happened: the government is taking blogs so seriously that the FTC is cracking down on us! As you may have heard,

Bloggers who offer endorsements must disclose any payments they have received from the subjects of their reviews or face penalties of up to $11,000 per violation, the Federal Trade Commission said Monday.

The agency, charged with protecting consumer interests, had not updated its policy on endorsements in nearly three decades, well before the Internet became a force in shaping consumer tastes. The new rules attempt to make more transparent corporate payments to bloggers, research firms and celebrities that help promote a product. (source)

Isn't that interesting?

My biggest problem with this is that blogs are so diverse. Unlike traditional journalism outlets, blogs run the gamut, from huge to tiny, from personal diary to performance art. Does the FTC really care whether Ann in Nebraska, who endorsed Pampers on her mommy blog, got a free box of diapers in the mail for her trouble? Should Ann really be playing by the same rules as a professional journalist at the New York Times? After all, Ann speaks only for herself, to a small nonpaying audience. And what about the many bloggers who choose to be pseudonymous? Is it so important to achieve transparency in advertising that the FTC would actually out a blogger for the purpose of determining whether they had received any payments from an advertiser?

The truth is, the FTC probably doesn't care about small fry like Ann - or BioE. There are some huge blogs out there that command large followings; and in those circles, there have been cases where prominent bloggers got freebies big enough to seriously warp their objectivity (cars, laptops, etc.) But given that most blogs are hubs linking readers to more sources of information, I don't see how they are analogous to reviews in a newspaper. My guess is that Boing Boing gets reams of free stuff, and probably can't even keep track of it all. Does that affect my reading of the blog, or my assessment of the products they feature? Hardly. Blogs are mainly show, not tell.

But, you may be asking, "what about transparency?" Transparency is, after all, a Good! But it turns out no less a personage than Lawrence Lessig is troubled by the mystique of transparency. Here's Lessig's take on transparency in Congress:

All the data in the world will not tell us whether a particular contribution bent a result by securing a vote or an act that otherwise would not have occurred. The most we could say--though this is still a very significant thing to say--is that the contributions are corrupting the reputation of Congress, because they raise the question of whether the member acted to track good sense or campaign dollars. Where a member of Congress acts in a way inconsistent with his principles or his constituents, but consistent with a significant contribution, that act at least raises a question about the integrity of the decision. But beyond a question, the data says little else.

Lessig sees it as an "attention-span problem":

To understand something--an essay, an argument, a proof of innocence-- requires a certain amount of attention. But on many issues, the average, or even rational, amount of attention given to understand many of these correlations, and their defamatory implications, is almost always less than the amount of time required. The result is a systemic misunderstanding--at least if the story is reported in a context, or in a manner, that does not neutralize such misunderstanding. The listing and correlating of data hardly qualifies as such a context. Understanding how and why some stories will be understood, or not understood, provides the key to grasping what is wrong with the tyranny of transparency. (source)

I could not agree more.

Lessig's article is awesome
, although it only obliquely has anything to do with the position of small bloggers. Still worth a read, though - if only to think about what tangible good the vast glut of information coming our way under the aegis of "Transparency" is actually going to do for us.

But back to the FTC rules. One of the nice things about being a little fish in the blog pond is that I won't have to worry about them. I've never been solicited by an advertiser to endorse a product. I've never had a vendor send me a bunch of free stuff out of the blue (Ahem - it would be awesome if that started happening, guys). I've occasionally gotten a thank-you note or gift after posting something (such a sweet thing to do), but never in advance, when my post might be influenced by it. The only exception would be books and other media. It's usual practice that when you ask someone to review a book, you send them a copy. Often, one just receives books out of the blue, unsolicited. Does that count, FTC peeps? I mean, a review copy is technically "free stuff." But accepting a review copy of a book or DVD doesn't mean I'm going to give it a good review - quite the contrary (see: Sizzle and iBrain). If you think I'm the sort of person who would give a book an insincere review just because someone gave it to me, then you probably haven't been reading this blog very long. ;)

So to summarize the official BioE policy: if someone gives me a fistful of cash to promote some awesome steampunk boots or some great new book I'd have endorsed anyway, I will disclose it to you. And if someone gives me a fistful of cash to promote some crappy book that I think is a waste of your time, I will decline the money. So say we all!

PS. If you actually go read the Lessig article, you should also read Ethan Zuckerman's response to it, here.

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Which is as bad, someone else gets fined for what a blogger says without disclosing a freebie? Logically I assume that the advertiser is fined only when it's proved that they encouraged a blogger to hide the fact that they got a freebie, but the FTC isn't very clear. That's what bothers me the most about this: the lack of clarity from the FTC about all of this. There's been a lot of NEEDLESS worry from bloggers about this whole situation in my opinion.

There are several flaws with this system. First off, what if I wanted to launch an attack on a vendor, by sending free products on their behalf to bloggers, then anonymously complaining to the FTC? It might trigger fines against the target. Hmmm... Does Huffington Post sell anything?

It also seems like it's ripe for a flooding attack. Suppose I make 1000 nice Tshirts saying "I am an industry flack" and offer them to bloggers, then encourage them to send in disclosures in return for the Tshirt. Most federal agencies aren't staffed to handle a massive spike in demand.

I wish the FTC had been more clear about what behaviors it was seeking to control because the the blogosphere is so vast and diverse. Free copies of books or other items to review are a common practice in traditional media, usually with very little disclosure if any. So I have trouble believing that a sensible FTC would try to regulate that practice in the blogosphere.

Coturnix, you broke rule 11 of the Good Science Blogger Rules: Never link to HuffPo, Site of Alt-Med Woo.

By Katharine (not verified) on 15 Oct 2009 #permalink

The funny thing is that reviewers for traditional publications get TONS of free swag and never disclose any of it. Looting the review copies and promo materials was aways fun and if you're important enough (I wasn't so I had to settle for mere piles of review copies) you even get invites to release parties.

In case you haven't noticed, there is a world outside the USA. The FTC has no extraterritorial rights in places like Canada, where BoingBoing is hosted (IIRC). And Cory Doctorow blogs from his hot air balloon anyway.

Wonder how FTC handles US sites with some contributions from abroad (e.g. ScienceBlogs). Who gets nailed in the end?

By Lassi Hippeläinen (not verified) on 15 Oct 2009 #permalink

"In case you haven't noticed, there is a world outside the USA."

You caught me, Lassi - since I'm an American, I *obviously* have no idea that there are other countries, that the Internet is international, or even that there are languages other than English. Please. In case you haven't noticed, making condescending assumptions about Americans is no less rude than making condescending assumptions about, say, Finns.

How narrow or broad is the definition of "blogger"? Is there one? Does it cover only commercialised blogs? How is that defined? The questions are endless. It's going to be a lot of fun seeing how this plays out.