Oct
2009
…And There Was No One Left To Speak Out For Me
The Federal Trade Commission has made the first steps towards a scary, scary precedent, and if you aren’t careful, you could be next.
The Federal Trade Commission (FTC) has updated its Guides Concerning the Use of Endorsements and Testimonials in advertising for the first time since 1980. The new additions to the guides include endorsements by consumers, experts, organizations, and celebrities, as well as disclosing of “material connections” between advertisers and endorsers. In plain English, this means that if you get paid to talk about an item, or you receive it for free, you must disclose those situations wherever you talk about them online.
Well, that is if you talk about it on the Internet, if you do the same in a magazine or newspaper, then you’re perfectly fine and don’t have to say a word.
You see, for years newspapers and magazines have received free items to review, but they have never been required to disclose the arrangement. Do you really think movie reviewers pay to go all those movies? Do book reviewers pay for the books they receive? No, they don’t, but for some reason it is important that people know that those of us on the Internet who receive similar freebies are obligated to tell you because … well … we’re not really sure why, but if we don’t we could be facing fines of up to $11,000 per incident.
I have already written about this today at Tech.BLORGE.com and StarterTech.com, as well as having just recorded a podcast with Mark ‘Rizzn’ Hopkins and Steven Hodson about it that I will be posting later, and I have never thrilled to reusing a subject, but this is just too important to not be everywhere possible. The StarterTech article in particular lists my major reservations over this, but it can all be summarized as I fear the precedent it sets. It starts here, where does it go next?
My father asked me why I was so upset about this today as I don’t do reviews typically and it would have little to no impact on me, and I pointed him to one of my all time favorite quotes:
First they came for the communists, and I did not speak out—because I was not a communist;
Then they came for the socialists, and I did not speak out—because I was not a socialist;
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist;
Then they came for the Jews, and I did not speak out—because I was not a Jew;
Then they came for me—and there was no one left to speak out for me.Pastor Martin Niemöller (1892–1984)
This speaks to First Amendment issues, and is actually why I imagine this could end up being challenged in the courts at some point, but for now it is just frightening. The FTC thinks they are helping the American people, but this leads to one of Mark Hopkins’ favorite quotes:
The nine most terrifying words in the English language are, “I’m from the government and I’m here to help.”
Ronald Reagan
If you don’t speak out against this, then where will they go next?
Luis | October 6th, 2009 at 3:37 am #
Not to completely defend their position, but I think the idea is that (a) people know that the professional reviewers themselves never pay out of pocket for the items; everyone understands that either the employer or the producer pays for the review item, so it is not necessary to state it; and (b) that everything a professional writer reviews is treated the same (all items are free [in fact, not-free items are unusual enough that the reviewer often states that fact out loud when it happens] and there is a standard policy about whether the reviewer gets to keep it personally), so there is theoretically no favoritism shown to those who give freebies.
Now, if the reviewer gets something in addition to the review item, like a kickback, that's different. If there are no rules against that, then there should be, and if there is no rule that they must disclose stock ownership or other financial interest in the firm, there should be. (Which reminds me–due to this law, when I post anything about Apple, will I be required to disclose the stock I own? Hmmm.)
But bloggers like us are not expected to work under the conditions I stated in the first paragraph. We are 'grass roots,' regular folk, and our readership does *not* expect that we get stuff for free, and it is almost completely likely that not everything we review is free–thus a bias is introduced that may not exist for professional journals.
Just to throw a monkey in the wrench….
Sean P. Aune | October 6th, 2009 at 3:43 am #
We covered a lot of this on the special episode of CobWEBs today, and it still makes no sense why the FTC is going after the smaller bloggers (which is who this is pretty much directed at).
And you raised a very good point, Luis, will you have to disclose you own Apple stock? That is why this new rule is so scary because it can be interpreted in so many ways that it almost reaches a level of having to put a disclosure on just about every thing ever said on the Web. They're even looking at Twitter for crying out loud! How are you going to put a disclosure on 140 characters?
This is a very, very slippery slope, and it isn't even so much this first step that bothers me, but where it could lead.
Luis | October 7th, 2009 at 2:49 am #
Sean: Did my comment not get through? I thought I had successfully posted it…
seanpaune | October 7th, 2009 at 4:03 am #
Just sent you an email … I have NO clue what happened with your comment or my follow up reply