Reactions to FTC Blogger Guidelines

October 7th, 2009
Author: Alex Payne

As we reported on Monday, the Federal Trade Commission updated their compliance guidelines for the FTC Act, the first such update in 29 years.  While the changes do affect a few outdated rules the main goal of the document was to cleanly define what bloggers can and can’t do online.  The guidelines state:

The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.

The need for these rules is clear and somewhat past due. As marketing becomes more conversation oriented, we need to protect consumers from unfair and unethical claims.  It is why we believe in transparency and the Blog with Integrity movement. Unfortunately I’m hesitant to embrace the guidelines as fully as blogs like Mashable have done. Specifically, I’m having trouble with three big issues:

  1. Scope- The term blogger is being used very loosely here.  Under these guidelines blogs, Twitter, even Facebook fan pages could be under the discretion of the FTC. While I understand the need to tackle many web properties at once (since updates are infrequent), I don’t know if the best way to lump everyone in together.  Considering that anything that is considered a “material connection” could be scrutinized, how is everyone supposed to comply? How many people even know about these guidelines in the first place? And where do rating sites like Amazon or Yelp fit into all of this?
  2. A Double Standard? –  Why are bloggers being singled out? As Jeff Jarvis points out, “The FTC also concedes that it treats critics at publications differently – less stringently – than bloggers.” Most bloggers don’t consider themselves journalists and don’t make their living reviewing things like some journalists do, but why compound the point and have two sets of rules. It just doesn’t make sense.
  3. Enforcement- Eleven thousand dollars is a lot of money to most people and makes it seem like the FTC might be the “new” RIAA. Some fines will be covered by brands, but considering that these fines will be judged on a “case by case” basis, it is hard to guess where the first strike will land. Will a Twitter mention receive the same discretion as a blog post? Will the little guy get hit with large fines as much as the big fish?   With the FTC ‘s Richard Cleland telling book blogs to return books after reviews, how much will people need to disclose to avoid a potential fine? As much as this guy?

I think that the new guidelines are clearly a step in the right direction. With some additional edits and clarifications, this document could protect many consumers without hurting the online conversation.  However considering that this is the first update in almost 30 years, I think that the FTC should re-evaluate how their perception on how social media works.  Who knows maybe at the next update in 2038, we will see some real progress!

What do you think of the recent guidelines? Will it change how you blog?

Photo Courtsey of Robyn Gallagher.

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