The Asinine New FTC Rule
The governanny extends her Big Nurse-like reach. From PCWorld, the FTC's new rules for bloggers:
A rare trend among some bloggers is to receive a small fee in exchange for reviewing a particular product or writing a blog post about it. Under the FTC's new rules, all bloggers engaging in this practice would have to disclose that they are receiving a fee for their blog post. Bloggers will also have to disclose any gifts they receive, such as a free gadget, book, or toothpaste, since the free merchandise counts as compensation.The strange thing about this new rule is that, in my experience, many bloggers already disclose when they are being paid for reviews. I've also seen disclosure on those rare occasions I've come a cross a PayPerPost model, when a blogger is basically working a product endorsement into their writing. Of course, even if a pay-per-post blogger didn't disclose what they were doing, it is often painfully obvious they've been paid to insert something about 'Super Wowee Shampoo' into their blog.
But let's say you are working an endorsement into your blog for shampoo and you end up talking about your experience with that shampoo. You must clearly disclose the typical results someone can expect to get from using that product. If your experience was not normal, a "results not typical" clause just won't cut it.
Bottom Line: If you receive gifts, money or any other type of compensation from a product manufacturer or service provider you have to disclose it.
I'm not for sale. I don't even do "link exchanges." If you like my blog, link to it. If not, don't. I link to people whose work I think is worthy, and whether they even like me, let alone link to me, is immaterial to me.
I buy many of the books I recommend here, and most that I have recommended -- like John Gottman's terrific book, The Seven Principles for Making Marriage Work.
I also just got a kid at my coffee shop, with a young pregnant wife, a scholarship for free admission to the $145 Gottman Institute program, Bringing Baby Home. And no, I didn't get a kickback for this. The workshop, which I saw demonstrated at the Erickson Evolution of Psychotherapy conference about five years ago (for which I was comped, and about which I blogged) is good and I recommend good workshops simply because they're good. I wrote to the local leader of the workshop and asked them to give the kid a discount, as he probably makes minimum wage, and the guy came through.
Oh, and likewise, when I refer people to the late Albert Ellis' website, to the therapist referrals link, I don't get anything for it; nor do they even know I've referred people. I do it because I think Ellis' brand of cognitive behavioral therapy is the fastest, smartest, most efficient form out there. If you want to pay through the nose to sit for years and whine to some psychotherapist about your problems, and probably ingrain them further instead of solving them, have at it.
Actually, during the years when things were good in newspapers, until about a year ago, I'd often just buy a book on Amazon rather than asking for a review copy (free copy from publisher to reviewers, columnist who write about books, etc.), which sometimes requires finding the buried link to the media department and then faxing them a request on letterhead. I'm a busy girl.
These days, however, with papers going out of business right and left, I have to be more prudent. So, while I bought two editions of David Buss' terrific book, The Evolution Of Desire (the original and the updated version), I asked for a review copy of his latest, Why Women Have Sex: Understanding Sexual Motivations from Adventure to Revenge (and Everything in Between). What will lead me to recommend it? If I think it's good and relevant to people who read me. Period.
The truth is, I get lots of review copies I'd never mention, and I actually write to publishers to urge them to never send me novels, which, with few exceptions (most of them having Elmore Leonard on the cover), I will never recommend. Books on lettuce-headed thinking like astrology will likewise never make it onto my blog or into my column, except if I'm in the mood to ridicule them.
Whoops, sorry, full disclosure, Mr. FTC man: I'm sleeping with Elmore's researcher, he buys me dinner with regularity, and, when I go with my boyfriend to Detroit, Elmore buys me dinner sometimes, too. (Oh, I'm such a dirty whore.) It gets better: Elmore also blurbed my book and tells me funny dirty stories.
Oh, and more full disclosure, engineering prof Barb Oakley gave me her amazing book, Evil Genes: Why Rome Fell, Hitler Rose, Enron Failed, and My Sister Stole My Mother's Boyfriend, and wrote in it, "To Amy Alkon -- the best friend I've ever made in two seconds flat," which is absolutely true and has absolutely nothing to do with why I recommend her book on my blog, and in person, to lots of people I know and meet.
Are we done here? I'm not for sale, and if I were, it sure wouldn't be for the price of a trade paperback.
P.S. I'm with Paul Levinson:
First, I think that a blogger or anyone who fails to disclose a paid endorsement - who gives the impression that he or she likes or approves of something, when in fact the main motivation for the blog or whatever statement is payment from the purveyor of the product or service - is behaving unethically. Such non-disclosures are lies of omission, pure and sample, and deceitful practices warrant being publicly called out.But they do not warrant a Federal or any governmental fine, which is quite another matter.
To begin with, such lies of omission are not the kinds of false assertions which are already prohibited by the FTC. Claiming that a car gives you 25-miles-per-gallon when in fact the best it can do is 15 is a bald-faced lie of commission. Such black-and-white falsities bear little resemblance to paid-for appreciations of products that masquerade as genuine endorsements. The first kinds of lies can pump false statistics into the public realm. The second kind is likely to do no more damage than making consumers feel good about a product, which would only happen if the consumers already had confidence in the blogger. As word of the blogger's deceit spread, such confidence in the blogger would shrink - without the need for government fines.
More important, government regulation of any communication, especially backed by hefty fines, is in danger of contradicting the First Amendment insistence that "Congress shall make no law ... abridging the freedom of speech, or of the press." Clearly, blogging - even for undisclosed payment for endorsements - is a form of press. And where would such regulation end? Are reviewers of movies, rock concerts, even books, obliged to disclose that they were given free tickets or copies of the book under review? Is a rave review undermined when it flows from media content provided gratis? Should our major publications and broadcast media be fined for such non-disclosures?
If you would say no - as I certainly would - then you must consider why bloggers should bear this burden. Is not the FTC beating up on a new new medium, most of whose practitioners lack the legal clout - as in in-house attorneys - to stand up to the government on this issue?
If the FTC is going to police online content--and I'm not saying they should--the far more pernicious problem is on sites like Yelp, where employees post raves and competitors post pans and it's much harder to tell what's going on.
Virginia at October 7, 2009 1:21 AM
Once again, disclosure is for other people. I wonder how many in the FTC are current with their taxes?
And what kind of stupidity is this, anyway?
Have they - have you - not noticed that content has no direct relationship to income?
Radwaste at October 7, 2009 2:26 AM
Bureaucrats need to justify their existence.
Bradley13 at October 7, 2009 3:42 AM
What's the difference between me getting on a conference call with my buddies and recommend a good chainsaw to one of them.
The American people need to get the government tentacles out of our lives.
David M. at October 7, 2009 5:09 AM
Once again there is no problem so small that the crushing weight of the federal government can't be brought to bear on it.
What ever happened to "Don't make a federal case out of it?"
BlogDog at October 7, 2009 5:23 AM
Ann Althouse pithily nails the issues here:
The most absurd part of it is the way the FTC is trying to make it okay by assuring us that they will be selective in deciding which writers on the internet to pursue. That is, they've deliberately made a grotesquely overbroad rule, enough to sweep so many of us into technical violations, but we're supposed to feel soothed by the knowledge that government agents will decide who among us gets fined. No, no, no. Overbreath itself is a problem. And so is selective enforcement.
Robin at October 7, 2009 5:56 AM
I trust an endorsement made by Amy because it always fits with her style of writing. Amy's personality is distinct and it shows in her choices of what to blog about and her opinions. I'd have to do a double-take and wonder if her account were hacked if I ever saw her endorse a romance novel or a book by John Edward. I don't need her to tell me if she is getting paid or not because through her writing she has become a credible voice. While I don't always agree with her, her words always ring true.
Kristen at October 7, 2009 5:56 AM
Amy Alkon
http://www.advicegoddess.com/archives/2009/10/07/the_asinine_new.html#comment-1671279">comment from KristenI trust an endorsement made by Amy because it always fits with her style of writing. Amy's personality is distinct and it shows in her choices of what to blog about and her opinions.
I routinely scold publicists (politely!) who e-mail me wanting to send me free books on stuff that I'd obviously never write about. It's their job to target people like me, and not waste my time (we all get way too much e-mail). Actually, the last thing I want is free books that I won't be likely to recommend. I would like the place I live to look a little more like a home and a little less like a packed college-town bookstore. Right now, I have two full bookshelves in my kitchen, in addition to all the others, and not an other inch of space in which to put another.
Amy Alkon at October 7, 2009 6:54 AM
If we make everyone a criminal, then everyone will finally be equal in the eyes of the government.
brian at October 7, 2009 7:30 AM
The library, local high school, Boys Club or other such organization might be able to use those books. I know it's hard though. I moved recently, and can't bring myself to get rid of a single book. I had to have a guy line half my living room with shelves, and it still isn't enough.
Robin at October 7, 2009 7:41 AM
From Amy's PC World link:
Richard Cleland, assistant director of the FTC's Bureau of Consumer Protection, says the regulatory body is more concerned with how advertisers pay for endorsements and reviews rather than the actions of individual bloggers and other online types, according to IDG News Service. That being said, the FTC can levy fines of up to $11,000...
So IF you're an individual blogger and IF you get fined, you....what exactly?
Comfort yourself you're not really the main concern of the FTC?!?
Jody Tresidder at October 7, 2009 8:03 AM
Once again, the underlying conceit is exposed: that the U.S. federal government really, truly believes it can regulate the entire Internet. Hell, they can't even get Pirate Bay dead and buried. It would be trivial for bloggers to move their sites to offshore servers. Then what? Are the feds going to cut every comm link that crosses the border? It would take a Stalin-like police state to accomplish that. Which, come to think of it...
Cousin Dave at October 7, 2009 8:07 AM
What I'm trying to figure out is, what in the world is the FTC doing this for? Is the Fed now trying to protect me from something I didn't know I needed protection from?
I can picture a feverish conspiracy theorist ruminating about how this is just a trial balloon for the Fed regulating and criminalizing whatever internet content they decide not to like.
old rpm daddy at October 7, 2009 8:59 AM
> employees post raves and competitors
> post pans and it's much harder to
> tell what's going on.
I don't think government is supposed to make it easy "to tell what's going on."
A couple years ago someone released tracking software allowing us to see who'd been contributing to Wikipedia pages. We learned that a lot of American corporations (and other ventures) were expressing unhealthy vanity about their descriptions there, as if no one should ever be allowed to say anything wrong (or even just unflattering). After that, many of us knew not to take Wikipedia quite so seriously.
Legislation like this prevents that kind of growth. It gives people the feeling that nothing in their environment should ever be wrong, or contradictory, or even contestable.
Is that the kind of population we want?
Crid [CridComment @ gmail] at October 7, 2009 9:08 AM
I don't outsource my thinking.
In the terminology of propaganda, it's known as an appeal to authority.
Amy's advice seems sound, so the books she recommends will get my attention. That is as far as it goes. The books need to stand on their own merits.
Given the astronomical federal budget deficit, I think the FTC budget could stand some paring.
MarkD at October 7, 2009 9:10 AM
So anything that's the least bit unethical must be made illegal, and punishable by the full weight of Big Government. This is just a step removed from the Taliban mentality, wherein anything sinful is a crime against Allah, and punishable by beheading.
On any given day, millions of teenagers are babbling away to their friends on Facebook about the latest video game. Will their parents have to pay the $ 11,000 fine if the kids don't provide full disclosure with every endorsement? Suppose you're having lunch with your co-workers at Guido's Pizzeria, and an FTC agent overhears you saying that you're going to tell all your friends about how delicious the pizza is. Will he arrest you on the spot if you can't prove that Guido didn't pay you for your endorsement?
Amy's blog is nothing more than a convenient place to have a conversation. It's like being in her house & chatting after dinner, except that there's more room & we don't all have to drive down to southern California. If the government feels entitled to regulate every conversation in cyberspace, then what exactly is stopping them from regulating every conversation in private space too?
Martin (Ontario) at October 7, 2009 10:28 AM
>I don't outsource my thinking.
Right on Mark D! I am a big girl and can figure out if a product is something I want to try or not. I am a fan of Amy's and know that she endorses only what she believes in. That being said I don't share every one of her beliefs so I am not going to rush out and try something solely because it was endorsed by her (no offense). If it is something I would find useful in my life, then yeah I am going to try it, but not arbitrarily because it was reccomended by her or any other blogger. I don't even do that with my best friend.
The government is overstepping its bounds with this one.
MizB at October 7, 2009 10:37 AM
There's a difference between free speech and advertisements.
The FTC is acting on existing abuses so that advertisements in
disquise get disclosed. See, for instance,
http://payperpost.com/bloggers/get-paid-to-blog.html (there's
lots more like this out there).
Ron at October 7, 2009 11:21 AM
"There's a difference between free speech and advertisements."
Ron, that's not really true. There is nothing in the First Amendment that excludes advertising. Of course, there are always government bodies wanting to ban advertising of various categories of products, but the history of these is that most of them either get overturned on First Amendment grounds eventually, or else the government reaches an agreement with the impacted parties in order to avoid going to trial and retain some restrictions. Thirty years ago, lawyers and doctors were not permitted to advertise at all. Hard liquor ads were not permitted on TV, and many states had laws that so severely restricted what liquor stores could do that sometimes they weren't even permitted to put a sign out front. The FTC's rule that only a person with an Ed. D. could endorse children's products got thrown out. And so on.
The biggest one still standing is the ban on tobacco advertising, and that continues to stand mainly because the government has the tobacco industry under its thumb, and so the industry has never challenged it. We can argue about whether that should be the case, but I'm pretty sure that if some gonzo tobacco company really wanted to fight it in court, and had the resources to do so, they'd win eventually.
There seems to be a widespread perception that "commercial speech" is not protected by the First Amendment and that government can restrict advertising and other commerce-related speech in any manner it wishes. That's simply not true. Government can restrict the time and place of advertising, but content-based restrictions are (nearly) as unconstitutional as any other kind of speech restriction.
Cousin Dave at October 7, 2009 1:51 PM
I've been a journalist for 30+ years, and the cozy relationships between the press (which includes bloggers these days), business and government is an ethical sewer. I've mainly been an automotive journalist and I've seen exactly how it works. The press can't line up fast enough for free food, trinkets and access. It's all about control of information, and if you put out information that business or goverment dislikes, you will find your access to information gone.
People need to know what creates a "chilling effect" on truth . . .
http://en.wikipedia.org/wiki/Chilling_effect_(term)
"A chilling effect is a term in law and communication which describes a situation where speech or conduct is suppressed by fear of penalization at the interests of an individual or group. It may prompt self-censorship and therefore hamper free speech. Since many attacks rely on libel law, the term libel chill is also often used.[citation needed] This is the same concept as a Strategic Lawsuit Against Public Participation, or "SLAPP" suit."
Jay J. Hector at October 7, 2009 3:18 PM
Me: "There's a difference between free speech and advertisements."
Cousin Dave: "Ron, that's not really true. There is nothing
in the First Amendment that excludes advertising."
Okay, I need to be more specific. Free speech doesn't include
actual fraud. Let's do a few examples.
If I, in ordinary discourse, say that Quack1 pills cured my
high blood pressure, that's free speech. I may be mistaken, but
it remains my right to say what I experienced and believed.
If the makers of Quack1 paid me to say this, that that's
something else entirely. The money incentive changes the
game and needs to at least be disclosed.
If I'm the maker of Quack1, then the government, IMHO rightly,
insists that I have actual scientific evidence that my claims
aren't fictional in order to sell pure snake oil.
Ron at October 7, 2009 8:42 PM
Anyone who reads enough blogs can pretty quickly tell who cares about their credibility; those for whom that is a priority won't endorse things unless they actually believe in them, and will disclose financial interests in what they write about. This rule won't make people who were not already so credible and it won't make dishonest people honest. It's also hard to know where the line should be drawn, which makes the selective enforcement promises all the more problematic.
Whatever at October 7, 2009 8:56 PM
Hey, she was THAT Virginia.
Crid [CridComment @ gmail] at October 7, 2009 10:42 PM
Ron, I see what you're getting at. If I make a statement that I've giving unsolicited testimony when I'm actually being compensated, that is fraudulent. I can get around that by weasel wording my statements. But most readers will spot that, which is why I don't think it's really a problem in practice.
One specific problem with that example is that the makers of Quack1 can exempt themselves from FDA regulation by simply marketing their product as a dietary supplement rather than a drug. Makers of dietary supplements seem to be able to get away with murder for some reason.
Cousin Dave at October 8, 2009 6:46 AM
Yes, an ethical blogger would disclose any payment or freebies. But not all bloggers are ethical; quite contrarily, every new form of media starts as a morass of hucksters and salesmen. Newspapers and magazines, as they've evolved, have developed codes of conduct around these issues. Until bloggers do the same, I see no reason not to regulate the matter.
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