It seems it isn’t only myself and a few others who are beginning to take issue with the FTC.
It was really beginning to feel like that Steven Hodson, Mark ‘Rizzn’ Hopkins and myself were the only ones crying “FOUL!” over the new Federal Trade Commission (FTC) guidelines for bloggers, but this past week a few major groups have spoken out against them, going so far as to call them “unconstitutional”.
The Electronic Frontier Foundation (EFF), which I feel was slow to react to this case, has stated:
EFF believes that bloggers ought to have the same legal protections and privileges as traditional journalists. We urge the FTC to rethink and clarify the problematic aspects of these new rules.
Well, it’s about time someone with some juice stood up and said this!
Then the Interactive Advertising Bureau (IAB), a group representing large players in the interactive advertising business such as Google, MSN and AOL, issued an open letter to the FTC:
The Interactive Advertising Bureau (IAB) today called on the Federal Trade Commission (FTC) to withdraw recently issued enforcement guidance regarding the opinions and commentary of bloggers and other participants in social media, saying the rules unfairly and unconstitutionally impose penalties on online media for practices in which offline media have engaged for decades. In an open letter to FTC Chairman Jon Leibowitz, Randall Rothenberg, the President and CEO of the IAB, called the FTC’s distinction between offline media and online media, “constitutionally dubious.”
“Constitutionally dubious.” Really? You don’t say.
The letter goes on:
“What concerns us the most in these revisions is that the Internet, the cheapest, most widely accessible communications medium ever invented, would have less freedom than other media,” said Mr. Rothenberg, “These revisions are punitive to the online world and unfairly distinquish between the same speech, based on the medium in which it is delivered. The practices have long been afforded strong First Amendment protections in traditional media outlets, but the Commission is saying that the same speech deserves fewer Constitutional protections online. I urge the Commission to retract the current set of Guides and to commence a fair and open process in order to develop a roadmap by which responsible online actors can engage with consumers and continue to provide the invaluable content and services that have so transformed people’s lives.”
Will the FTC listen to any of this criticism? Doubtful if their reply to FastCompany is any indication:
“Although the [Interactive Advertising Bureau (IAB)] contends the FTC’s Endorsement Guides are unconstitutional, the Guides apply only to marketing and they attempt to illustrate some of the factors relevant to distinguishing advertising from editorial content,” says Mary Engle, the FTC’s director of the division of advertising practices, in an email statement released today. “If particular communications do not in fact constitute advertising, as the IAB appears to be suggesting, then the Guides do not apply. Where the message is advertising, however, disseminators have an obligation to ensure it is not misleading. This includes, when it is not otherwise clear from the context, identifying when the endorser has been paid for the endorsement. Although IAB may disagree with the policy, nothing in this approach is unconstitutional,” Engle re-iterated.
What a surprise reply from the FTC.
The FTC is now trying to say that this is more about keeping the advertisers in line than it is the bloggers, but that doesn’t ring with the least bit of truth. As FastCompany rightly points out:
He points to the oft-cited book review example, in which books received by bloggers are considered a form of compensation and as a result would have to be disclosed. “By saying, ‘Don’t worry, bloggers, we’re going after publishers,’ it’s saying it’s okay to send those books to magazines and newspapers but not to a blog or a social media site or someone who’s known to review on Amazon. It’s saying if publishers send these books to someone who reviews things for Amazon.com, the publisher can be penalized. But if you send them toThe New York Times or The Atlantic or freelancers who does contributing to Publishers Weekly, you do not face the threat of penalty.”
And going back to the open letter from the IAB for a moment:
“They—and we—are not arguing that bloggers and social media be treated differently than incumbent media. After all, most newspapers, magazines, radio stations and television networks, in recognition that Americans are embracing new forms of social communications, have established their own blogs, boards, Facebook pages, Twitter feeds, and the like. Rather, we’re saying the new conversational media should be accorded the same rights and freedoms as other communications channels.”
And that hits the nail on the head. New media is not asking to be treated any differently than traditional media, but yet that is exactly what the FTC has done. They have set one set of standards for legacy media, and a completely different set for new media.
Many people have said to me, “If you have nothing to hide, why not disclose?”. Well, I am perfectly willing to disclose, but I just want an even playing field for both old and new media. The example of review books is the easiest one to deal with, and it is the most direct. Why should my reviewing a book require a disclosure that old media gets to skate totally over? The FTC has said it is because those books are assigned by editorial staff, and it is not sent directly to the writer, but that isn’t always the case. There are times where the books are sent directly to the writers, and they do in fact get to keep the book, just because they are writing in a print publication they are somehow exempt from any semblance of wrong doing, but because I write for a blog, I am immediately assumed to be of some sort of lower moral fiber and I have been potentially bought off with the book.
Currently sitting on my desk is a stack of six books I have been sent by publishers. I did not request any of these books, and I honestly don’t know why I got them as I have never reviewed a book on any site, but there they are. The letters that come with them always say that I am under no obligation to review the books, but that they hope that I might. I have not chosen to review them, or even read them, because they really aren’t my style of books, but if I did ever choose to review any of them, that would be my choice. It would not be because I feel some moral obligation to do so, and it would certainly not be because I feel indebted to the publisher for “giving” it to me. Under these new guidelines though, I would be obligated to tell my readers that I had been given this book because I can’t be trusted to write a fair review in the eyes of the FTC. My feeling is this would lessen the impact of anything positive I would say about a book that I genuinely liked as it obviously motivated me enough to write it. It would bring my standards into question with my readers because they could go, “Well, obviously Sean went overboard with his positive feelings because he was given this book.”
Oddly enough, when you read the full guidelines from the FTC (PDF link), it sounds as though you only have to disclose if you give a positive review, and no time does it state that disclosure is required for negative reviews. So, apparently if I hate something (I know … that’s so unusual for me) I am free of any questionably moral actions on my part.
These “guidelines”, which are effective as of Dec. 1st, will end up in court folks, and my gut tells me that a judge is going to tell the FTC that it’s either a level playing field for all, or nothing at all.