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.”
“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.
Day 3 of “The Blogopshere vs. the FTC” brings us the full set of guidelines, and wow are they head spinning.
I really don’t want to blog daily on this whole Federal Trade Commission (FTC) guideline debacle, but it just keeps getting weirder and weirder.
First off, I finally got a link to the full 81-page document (PDF link) from Steven Hodson, and although I have only read through 51 pages thus far, this is going to be mandatory reading for every independent blogger if you want to make sure to keep yourself from getting in trouble with the FTC. That being said, be prepared for the extreme ambiguity of the document on many fronts.
So far I have still yet to find anywhere that describes in detail how disclosures are supposed to be written. It mentions numerous times that you must disclose if you receive a product for free and then give it a positive review (there is some implication that disclosure is not required on negative reviews), but nowhere does it say how are exactly where it is to be placed.
The document also discusses new rules for celebrity endorsements and how they are supposed to disclose their relationship with anything they speak positively of. The problem with this is that at no time do they define what a celebrity is. On tonight’s episode of CobWEBs, Mark ‘Rizzn’ Hopkins and I discussed this, and technically you could call iJustine a celebrity, but that is only to a handful of people on the Internet. Heck, there was even a time when I was working for Wizard magazine that I was being asked for my autograph on a regular basis, would that have qualified me as a celebrity? I was a celebrity to those people, but not to the other 99.999999999% of the population of the country, but would I have qualified for the FTC celebrity rules? Who knows, their answers are so vague.
Then to muddy the waters even further, Richard Cleland, assistant director, division of advertising practices at the FTC (and someone Rizzn has been trying to get an interview with for 3 months with no luck) spoke with FastCompany, and made some of the most mind boggling statements ever.
Heather B. Armstrong, author of parenting blog Dooce: “Eleven thousand dollars is a little crazy for a post. Maybe I’m being naïve, but I think a lot of people who are in violation [of not disclosing] just don’t know that they’re supposed to.”
Richard Cleland: “That $11,000 fine is not true. Worst-case scenario, someone receives a warning, refuses to comply, followed by a serious product defect; we would institute a proceeding with a cease-and-desist order and mandate compliance with the law…
Excuse me? When did the FTC start writing laws? They are a regulatory body, they are not capable of making “laws”. Perhaps he was misquoted, but if the FTC really sees this as “law”, we’re in bigger trouble than any of us first thought.
Brian Lam, editorial director of Gizmodo: “Some colleagues of mine just reminded me of how many freelance pro journalists take junkets. In the end, I’m glad these rules are being introduced, but it’s kind of stupid to attach unethical behavior to a particular publishing medium. Look at how shitty TV journalism can be, by and large.”
RC: “It’s not the medium, it’s the message. We want to establish a self-imposed ethical standard so people are aware of the conflicts of interest…
“We want to establish a self-imposed…” um … which part of this sentence makes any sense? How does person #2 establish SELF-IMPOSED anything on person #1?
This is what we are dealing with folks: vagueness, ambiguity and a regulatory body that seems to have no clue what its actual job is. If you aren’t scared yet, you aren’t thinking.
This was the most tired argument I have seen, and it simply isn’t true. If this was true, I want you to point out to me where movie reviewers disclose that they got into a movie for free or got sent a DVD copy of the movie for free. We all know it happens, but have you ever seen them disclose it? Same goes for book, movie and DVD reviews.
Now, under these new FTC rules, if I decide to review anything, and if it was sent to me for free, then I have to write a disclosure every single time I do it. Tell me how these are the same rules traditional media has been under.
“Facebook and Twitter fall under these rules also.”
Yep, all that fun you have on social media sites? Well, prepare yourself to always disclose your relationship for any product you speak positively of.
Caroline McCarthy of CNET spoke with a Richard Cleland, associate director for the FTC’s advertising division, and here is the scenario he set up to explain the Facebook scenario:
Here’s a sample scenario: a celebrity or other prominent figure with loads of friends on Facebook receives free hotel says [sic] from Hotel Chain X in exchange for running Hotel Chain X ads on his or her blog. If that person then signs up as a Facebook fan of Hotel Chain X–which, remember, could mean that the person’s name can show up for his or her Facebook friends alongside Hotel Chain X display ads on the social network–he or she could be held liable by the FTC.
“It would be the same thing if you were going to pay the celebrity a thousand dollars to go register as a fan,” Cleland said. “In that case, there wouldn’t be any question about it.”
And as for new media darling Twitter?
As for Twitter, the FTC isn’t letting you get a pass with the excuse that 140 characters–Twitter’s famous text limit–is simply too short. “There are ways to abbreviate a disclosure that fit within 140 characters,” Cleland said. “You may have to say a little bit of something else, but if you can’t make the disclosure, you can’t make the ad.”
So, think you will be exempt from this if you aren’t a blogger. Too bad. If you have any sort of relationship with a product, and you make a comment anywhere on the Web about it, you better be prepared to disclose your relationship.
“This is all about going after sploggers.”
No, it isn’t.
In a discussion between Steven Hodson and Matt Cutts of Google on The Noisy Channel, they brought up the discussion of how this will cut out bad marketing:
Steven: “No degree of FTC intervention is going to make any difference to splogs or other such garbage…”
Matt: At a respected search conference last year, I sat in the audience and watched a presenter recommend “sock puppet” marketing by coming up with fake personas to promote products. With this new guidance from the FTC (plus similar recent guidance in the UK/EU against sock puppet marketing), that sort of bad advice will be much less likely to appear at search conferences. That’s one easy counter-example.
No, Matt, it isn’t. You are talking about advice given at a conference, big deal. The Sock Puppet marketers will simply start hiring people from Africa and India off of GetAFreelancer or other such sites and have them do that sort of marketing far from the reach of the USA, UK or EU.
And that is one of my biggest complaints about this whole thing is that the unethical people it is supposedly targeting will just find new ways of working around it, while those of us who follow ethical blogging and online presence will be saddled with these idiotic new rules, libing under fear of some little slip up costing us a potential $11,000 fine. Oh yeah, that makes things so much better.
“This will stop all those fake review sites.”
Are you kidding me?
Lets say that an “unethical” blogger is currently working out of the USA with their web site on servers that reside in the USA. They want to get away from these new rules so they move their site to servers in another country, they put privacy protection on their domain name and then they sit back.
The FTC finds them lacking disclosure, they will have to get a court order to reveal the name of the person who holds the ownership of the domain. So the FTC will have to weight taking the time to get the court order, and in some cases they will have to go through a court in another country, is it really worth all of that effort, time and taxpayer money for a possibly undisclosed material relationship? You guessed it, I would go with “no.” Of course, that doesn’t mean they won’t try.
All of the “bad” sites will simply move off shore to countries that don’t care about all of this hoopla, and the innocent people will yet again be left to jumping through hoops that should have never been required.
“This system is ripe for abuse.”
Yes, it is.
We have no clue what the investigation process will be like yet, but what is to stop people from reporting you for fun or revenge? ”Oh, hey, I think so-and-so has a relationship with that company they just posted abut on Facebook.” Oh won’t that be fun to defend yourself from false accusations? This is why some people will be better off even disclosing when they purchased something to cut off any possible questioning to avoid any sense in impropriety.
In other words, people will be so annoyed by having to watch their behinds that they simply won’t want to talk any more.
“Aren’t you worrying about this too much?”
No, I’m not.
I have done more reading today, and the tone of the conversations have changed quite a bit in the second day. Check out SiliconANGLE’s FTC vs. the Blogosphere Day 2 Roundup to get a better sense of what is being said everywhere. (disclosure: I am linked to in that article and I work for SiliconANGLE … see … won’t that get annoying?)
1. Will these same ‘guidelines’ be applied against “traditional media” and if not – why not?
2. What exact form do these disclosure need to take? Per post? Per page? Per comment?
3. Is this retroactive? Does this mean that sites like Gizmodo, TechCrunch, Mashable, – well every single blog past and present will have to go through all their archives and add a disclaimer. Because we all know that posts that are even months or years old can resurface.
4.Will book publishers make signing a disclosure form a part of bloggers doing book reviews and is it really worth the effort at that point?
5. Does the country of origin of the writer matter as to whether a disclosure is included?
6. Does it matter the country of origin of where the blog served from come into play?
7 Does the country of origin of the product, service or book come into play at all?
(disclaimer: I know Steven and make fun of his Canadian citizenship on a regular basis)
The FTC has got to start defining this whole thing better, but somehow I don’t see that coming any time soon.
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?
Hard to believe it, but this is the 2000th post on this blog.
Now, that isn’t 2000 consecutive days (I’m at 1,662 days), but it is a total of 2,000 separate posts that I’ve made, some of them even before I started this non-stop run attempt. It really isn’t that large of an accomplishment compared to most big blogs, some that can do that many posts a month, but when you are the lone writer on a blog, I think it’s worth some form of acknowledgement.
So I thought I would do a quick walk down memory lane of a few of my favorite posts.
Who Is The Best James Bond?
No clue why, but I really liked doing this post, and people seem to like it also as it continues to get new visitors every day. It was just kind of nice to discuss something that has been a part of pop culture for so long, and is something just about every one has some sort of an opinion on. I don’t think any two commenters had the exact same order of which actor played the role the best, but that was half the fun.
It’s nice to do something on here once in awhile that actually feels like it might open someone’s eyes to the things going on in the world around them. If I can ever get even one person questioning the motivations of the Church of Scientology, then I’ll feel like I’ve accomplished something.
I know, I’m cheating by just listing a group of posts, but it’s my blog, and I can if I want!
A lot of friends have asked me privately if there is something in my past that causes me to write about the teacher sex scandals, as in have I ever been sexually assaulted by a teacher. I can tell you without hesitation that absolutely nothing like what these teachers have done has ever happened to me. I simply write about these stories because I have known a great number of teachers in my life, and in general I just find it disgusting that any teacher would betray the trust of the student, their family and the community. So, if they do it, they should be talked about.
I have actually pondered spinning those stories off into their own blog, but that is something I am weighing the pros and cons of at the moment.
47-Year-Old Susan Boyle Wows The Judges On Britain’s Got Talent
For all of the negative things I write about on this site, it is nice sometimes to write about a positive, uplifting story. Susan Boyle was definitely one of those stories, and kudos to her. And, yes, I did actually spin stories about her off into their own blog at SusanBoyleFandom.com which I am still updating with various tidbits about her and her upcoming album entitled “I Dreamed A Dream”.
I know my favorites seemed heavy on recent posts, but that is partially because I think I am finally finding my voice as a blogger. One would certainly hope I have after this many posts!
I am excited about the future, and have no intentions of stopping blogging any time soon, so here is to 2,000 more posts of my rambling!
Only 35 articles this week … oh no, I dropped one from last week!
It seems it isn’t only myself and a few others who are beginning to take issue with the FTC.
Hard to believe it, but this is the 2000th post on this blog.
