As you've likely heard by now, the Federal Trade Commission is trying to reign in freebie-grabbing bloggers and graft-happy social media users masquerading as unbiased critics. The agency announced an update to the FTC Act of 1980, the requisite guidelines for consumer endorsements and testimonials. For many, the takeaway has been this: Bloggers Must Disclose Every Single Freebie Sent to Them From Companies--or Pay an $11,000 Fine. Scary.
Pundits quickly bashed the FTC as an old-economy regulator trying to legislate new-media technology. Few considered that the government may actually try to protect consumers from false advertising or bloggers on the take. It's "insanity and inanity. And danger," wrote blogger Jeff Jarvis. "The regulations raise no end of questions."
We asked a few other prominent bloggers what their biggest concerns were about the news, then we solicited responses to those concerns from Richard Cleland, assistant director, division of advertising practices at the FTC. (You can read the full report at ftc.gov.)
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. To the extent that I have seen and heard, people are not objecting to the disclosure requirements but to the fear of penalty if they inadvertently make a mistake. That's the thing I don't think people need to be concerned about. There's no monetary penalty, in terms of the first violation, even in the worst case. Our approach is going to be educational, particularly with bloggers. We're focusing on the advertisers: What kind of education are you providing them, are you monitoring the bloggers and whether what they're saying is true?"
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. That's the base, and we're saying: This is commerce. That's acceptable, but when that happens, the reader should know that there's this potential bias. Actually, these rules have applied to consumer endorsers since they were issued in 1980. I don't think the concept of 'disclose what I'm being paid' is a radical concept that is going to be foreign to people."
Amy Sherman, author of the food blog Cooking With Amy: "I'm more concerned that this will cause confusion among people and whether they can think they are free to say what they want. How is a blog different from word of mouth? Does it matter how big you are?"
RC: "When it comes to word of mouth and blogging, there's no difference. With word of mouth, there are instances when you're not necessarily hired by an agency but set up by a company. You get the inside info and get to be the first to have access, so you can earn bonus points for every person you tell--that is what I consider word of mouth. If you're paid to sell somebody's product in this way, and you deliver an endorsement, it doesn't matter in terms of how many people you send it to, but it does in terms of public interest and whether what the blogger has done is worth the inquiry. If you have 20 friends or 16,000, obviously, we'll look at the one with 16,000."
Ryan Block, founder of gadget blog GDGT: "There is a lot of vagueness and lack of definition to the guides."
RC: "There is some vagueness....The bloggers have to look at how they do their blogging, their business practice, and figure out the way that consumers will best get the message that this is a sponsored post. In terms of clear and conspicuous, the criteria there is that the consumers will notice the disclosure. Disclosures can be made in different ways, whether you make it outside of the text but in proximity to blog, or incorporate it into the blog discussion itself--those are the issues that bloggers will have discretion about."
That leaves one big question on everyone's mind: How is this going to be enforced?
RC: "I realize there are hundreds of thousands of bloggers out there. Enforcement on a case-by-case basis--that's not even a realistic approach. There are other types of enforcement, surfing the Internet, finding companies that are making significant health claims about products, identifying where problems exist. We'd alert Web sites to potential problems and then invite them to contact us about questions of compliance. I don't think it's a matter of the enforcement side being weak but the most cost-effective tool in our arsenal. In this case, we're going to rely more on voluntary compliance than prosecution. That's the most likely source that we'll be able to use to identify a problem, and if we do see a problem at a ground level and then ask the right questions, we'll figure out why there's a problem pretty quickly and go from there." Also, Cleland adds, "Competitors are very quick to turn people in. I've never suffered from a shortage of competitive complaints."
Got a question you want us to ask the FTC? We'll forward it to Richard Cleland directly. Send it to ideas@fastcompany.com.
Related Stories: | Topics:Technology, Blogging for Dollars, FTC, guidelines, richard cleland, Gizmodo, GDGT, dooce, $11, 000 fine, , Blogs and Blogging, Science and Technology, Technology, Internet, U.S. Federal Trade Commission |
Recent Comments | 16 Total
October 8, 2009 at 7:40am by Frann Leach
I wasn't concerned before, as I don't use testimonials - but now I am. If I use affiliate links in a blog post do I have to say so? If so, would a disclaimer on the site saying that I would get a commission from any sale resulting from clicking on my links (and that guest bloggers will get commission from clicks on links in their posts) be sufficient?
October 8, 2009 at 9:12am by Lynda Neuman
As a consumer it is nice to know if a recommendation is from some one who is paid to do this or someone who was invited to give an unbiased opinion of a product. There is a difference. Many times bloggers are invited to experience the product free then asked to blog about it. That is not a paid for endorsement in my book. Seems to be some fine lines to consider.
October 8, 2009 at 9:16am by Melissa Pierce
I really do think the FTC needed to rework their policy, that being said, it's a little disconcerting that it was not reworked to cover all types of media. Blogs needed to be covered yes, but the way advertisers influence the media has changed on many levels and in many different medium since the FTC's last update. All that is necessary is some more concrete rules that can be applied generally. Implied regulation of WOM marketing is not going to cut it.
October 8, 2009 at 10:31am by Shevonne Polastre
I agree with Melissa. It doesn't seem as though the FTC has thoroughly thought about this change to the laws to include bloggers. Before they start scaring people with talks of a $11,000 fine, they should first sit down and think this one through.
October 8, 2009 at 11:34am by John Williams
Mr Cleland says, "are you monitoring the bloggers and whether what they're saying is true?" How does a company or an individual product supplier monitor all their affiliates' every comment in real time?
Like the requirement to return samples, including books, it sounds great if you don't have to deal with the reality. How does anyone return an ebook?
I am glad that Mr Cleland has changed his statement in another interview that the disclosure had to be on every post. Maybe there's some hope. John Williams
October 8, 2009 at 12:05pm by Christine Carey
Dear Mr. Cleland,
Sure, you can say that the $11,000 fine is "not true" and talk about worse case scenario, but what you're saying in these interviews does not match up with the guidelines as written. The guidelines, while possibly well-intended are now a blanket that include all of these little blogs. Enforcing them might seem like a ridiculous idea, but why would you create blanket guidelines without intending to enforce them? That's saying "hey, we're making these rules, but don't worry about that. Even though they clearly state that they affect you, we're not really going to bother with you."
Please rethink this.
October 8, 2009 at 12:29pm by Gail Gardner
IMHO, it is always a good idea to disclose your relationship with what you recommend. When more bloggers are honest about why they recommend something and explain why accepting affiliate commissions for products and services THEY TRULY BELIEVE IN supports what they share more consumers will understand the benefits.
If you are a blogger who will promote anything with an affiliate link be equally honest that YOUR affiliate links = advertisements and not real recommendations unless explained otherwise.
Don't your readers deserve to know where you stand and why you recommend what you do? We don't need the FTC to know what is ethical and our readers need to be willing to allow bloggers to earn an income from their work.
October 12, 2009 at 5:40am by Barry Friedmann
It would be interesting to know what happens to people who have Adsense advertising on their blogs. The amount earned per click is different for every click, and the blog owner does not know this information ahead of time. I see far-reaching implications for this legislation, as it is impossible to enforce every aspect of it in every case.
October 12, 2009 at 7:38am by D T Jones
If you click links on the blog Dooce many load a phenomenal amount of cookies and tracking onto your computer which is commerce. I could not see anywhere on this blog disclosure about the commercial nature of links.
October 18, 2009 at 7:27pm by Andrew Eriksen
@ Barry, I would agree that the effects of this legislation could be far reaching but as an Adsense advertiser, I cannot say that I am worried. Google pays a lot in taxes and our government is hurting for tax revenue right now. I think they know it would be a bad idea to go after Adsense.
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October 23, 2009 at 9:16am by Louann Oravec
I do not get paid to blog, and I think this boils down to freedom of speech. If I have a problem with a company that I have gone to numerous channels to correct, but I have hit a brick wall I should have the right to blog about that company, and warn others. Most of the companies I deal with I check out with the BBB before dealing with them, how is a bad experience any different than checking them out with the BBB? They results are the same; you do not do business with that company.