The Federal Trade Commission’s new rules guidelines requiring bloggers (and others) to disclose freebies the have received from those they blog about have generated lots of comment, mostly negative. Walter Olson comments and rounds up some other reactions from the blogosphere.
UPDATE: Slate’s Jack Shafer on “The FTC’s Mad Power Grab.”
Categories: Uncategorized
Skyler says:
I guess we should all be thankful for the discretion of prosecutors in not coming after everyone that talks about their favorite book or product on line. I wonder if they’re going to extend that rule to chit chat at the water cooler or book clubs. It would seem we should all be felons, but some of us are worth putting in jail, the rest of us should just expect to live in fear.
There no longer appears to be any limit to what some people think is in the realm of appropriate government power. We lost the cold war after all.
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October 8, 2009, 4:54 pmXanthippas says:
Indeed Skyler, representative democracy is dead.
And what’s wrong with mandatory disclosure? Everyone says it’s adequate for campaign finance regulation, but it’s an onerous burden to bloggers to disclose that they review products favorably because they’re paid to do so.
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October 8, 2009, 4:59 pmjosh bornstein says:
Like most (all?) others, I am concerned by the lack of specificity, and by the stated intention to only go after major violations. But as a general rule, I like the idea of openness and honesty that is the goal of this regulation. I suspect that, within a very short period of time, there will come to be a one-sentence disclosure/disclaimer. (eg, “I was comped for all 3 meals at Cafe Swank, and I’d happily pay for future meals there . . . “. Or, “Dan Brown’s latest opus–given to me by the publisher–is a masterpiece/a piece of crap/a mixed bag . . . etc etc.”
Or maybe a short sentence at the top or bottom of the review. For something like Twitter (I am guessing; I’ve never used Twitter or even seen it), they could even come up with an icon, with an ascribed meaning of ‘based on gifted/donated stuff’, so that all readers could easily know that the following Tweet has been subsidized.
I certainly don’t have any arguments with the general concept, and I am sure that people can easily and quickly learn how to comply with a minimum of fuss or bother. (I’m also equally sure that some Tweeters [et al] will use all their creativity to avoid disclosing this sort of information, but that’s to be expected, alas.)
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October 8, 2009, 5:01 pmPatHMV says:
I haven’t had time to look at the text of the proposed regulations. Would a blogger be protected if he simply had a link, in every post (or in the sidebar of the blog) to a “disclosure” page, which says that the blogger may sometimes receive complimentary products or books, and that the blog occasionally reviews or comments upon those products and books? In other words, would a disclaimer that any given post may be related to a free product or book suffice? Or do the proposed regulations require a more specific disclosure, a “this particular review WAS based on a free product,” rather than a “this review MAY have been based on a free product”? If the latter is all that’s required, then I don’t see that the regulation, as absurd as it is, will have any significant consequence, as we can all just post the absurd disclosure in the side bar and be done with it.
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October 8, 2009, 5:08 pmPatHMV says:
What if you even said in your disclaimer: “You (the reader) should assume that I received a free product or book that I review, unless I specifically state otherwise. I probably didn’t, but the FTC thinks it matters that I disclose such things, so please assume that I did.”
Heck, what if you actually lied and said in the disclaimer that “All products or books mentioned or reviewed in this blog were given to me for free by the manufacturer or publisher.” Would it matter if that was a lie half the time (or more), because you never received any complimentary copies?
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October 8, 2009, 5:12 pmMartinned says:
As far as thread-winners go, this one’s pretty profound...
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October 8, 2009, 5:16 pmSteve says:
I see that the FTC is promising folks they won’t enforce these regs in the trivial cases, like a blogger who happens to review a book without mentioning that the publisher sent them a free copy. I take Walter Olson’s point that that kind of assurance isn’t really good enough, and that the regulations should be more narrowly tailored. But more to the point: can someone give me an example of the “extreme” case that the FTC is really worried about being able to punish? Is it like, Wal-Mart starts paying a bunch of people to write blogs that appear to be regular, personal blogs, but just happen to say lots of nice things about Wal-Mart? What’s this all really about?
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October 8, 2009, 5:17 pmSoronel Haetir says:
It would not surprise me if such a lie coupled with generally favorable statements about whatever you bring up would generate its own supply of free stuff. After all, you would dupe publishers into thinking other producers of stuff think you’re worth sending product to.
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October 8, 2009, 5:22 pmSoronel Haetir says:
How about hardware review sites like Tom’s Hardware? I believe most of the equipment they test comes free. And if my belief there is correct then the value is far greater than single books.
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October 8, 2009, 5:24 pmpete says:
What I don’t get is why other reviewers don’t have to do it. I read book and movie reviews all the time (a couple hundred a week at least, sometimes a couple of hundred a day) for my job as a collection development librarian. Everything from professional library reviews to industry publications, general newspapers and websites reviews like metacritc and rotten tomatoes.
I do not remember any reviewers disclosing that they got the item for free, even though I assume that is the case most of the time since the reviews usually come out before the title is released to the general public and I know publishers will send my library early release stuff to encourage me to buy it. Amazon notes that some of their most popular reviewers get free early copies, but that is the only time I can think of it and that is more to let potential buyers know how they are reviewing the title before release date.
Surely those types of reviews have more influence over what people buy than some bloggers do and I know they have a lot more influence over someone like me who buys stuff based on professional reviews for a living.
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October 8, 2009, 5:27 pmSuperSkeptic says:
caveat emptor. Problem solved. FTC be gone.
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October 8, 2009, 5:33 pmGabriel McCall says:
At least one site is already doing exactly this:
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October 8, 2009, 5:37 pmanonymous says:
But more to the point: can someone give me an example of the “extreme” case that the FTC is really worried about being able to punish? Is it like, Wal-Mart starts paying a bunch of people to write blogs that appear to be regular, personal blogs, but just happen to say lots of nice things about Wal-Mart? What’s this all really about?
Perhaps we shouldn’t only be thinking about the freebie books, and trinkets. What about free trips, tickets, meet ‘n greet exlusive events, etc?
You know — like the (pretty) pharmaceutical salespeople who provide doctors, and others in the medical offices, with much, much bigger perks than pens and ballcaps with their drug product name emblazoned on it.
I suspect, once the disclose rules kick in, we’ll get to see exactly what kind of perks the biggie blogs get for pushing the products they see fit.
(I always found it interesting — the higher up you get on the salary ladder, the more likely it is you get “comped” the things that your big salary entitles you to pay for anyway. Eventually, some people get to the point where they don’t expect to pay for anything) and express amazement when you present them with the dinner/drinks check, etc.)
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October 8, 2009, 5:38 pmSnaphappy says:
Maybe they are worried that manufacturers will post false positive reviews of their products on amazon.com and similar sites. I am embarrasingly vulnerable to such antics.
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October 8, 2009, 5:40 pmSteve says:
How about hardware review sites like Tom’s Hardware? I believe most of the equipment they test comes free. And if my belief there is correct then the value is far greater than single books.
Sure, maybe so. But do you have reason to believe that the FTC’s real agenda here is to crack down on Tom’s Hardware? Is Tom’s Hardware some kind of sham site?
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October 8, 2009, 6:01 pmSkyler says:
The problem with the statement of disclosure is that savvy people will comply with it. I’m not worried about them. Savvy people will always be able to afford lawyers or study up on intricate details of the laws.
What I’m concerned about is the unsophisticated people who don’t spend their lives worrying about what kind of idiotic laws are being made at a breakneck pace. They just want to be free and not be bothered by others. Posting an opinion of a product or a book online is pretty innocuous stuff, folks.
The FTC may claim now that they won’t go after little guys, but it’s still a crime. They can and will go after anyone that they want to once this rule takes effect. They’ll just claim he’s not a little guy or that his acts were really bad. The arm of the law is not only long, it’s now getting a huge net.
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October 8, 2009, 6:09 pmSkyler says:
And how is one to prove the origin of each item they discuss on line? Are we to keep receipts of everything we buy?
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October 8, 2009, 6:11 pmShelbyC says:
We pay people to make regulations. So they make regulations.
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October 8, 2009, 6:23 pmSkyler says:
Yeah, looks like they need different incentives.
Seems to me that this will have a chilling effect on the right to free speech. People will be afraid to write about things for fear they might be prosecuted.
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October 8, 2009, 6:39 pmanonymous says:
“Posting an opinion of a product or a book online is pretty innocuous stuff, folks.”
Yeah but really, so is noting that you were provided the product for free.
And sorry, I don’t buy that the “little guy” bloggers get so much comped stuff that they have to dig through receipts to try and keep track of what they were given free, and what they actually paid for.
Not saying I’m for this regulation, but I can see — in the case of some of the “biggies” — where it might be nice for readers to know which product/group is getting unconditionally endorsed, and which one maybe bought you or your family a nice comped “X”, in compensation for your “neutral” review.
Also, I’m pretty suspicious when people say they’re not concerned for themselves, but it’s the “little people” they’re looking out for. Kind of like the allegations I’ve been hearing of late, that we’re in Afghanistan to protect the rights of Islamic women or something, as opposed to having thousands of American troups camped right there in the region, should something big go down between say Israel and Iran. I guess I’m just naturally skeptical like that.
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October 8, 2009, 6:48 pmanonymous says:
“People will be afraid to write about things for fear they might be prosecuted.”
Not really. Because how many of the little unsavvy bloggers are getting anything for free?
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October 8, 2009, 6:54 pmFub says:
What I don’t get is why this rule is so much more broad than the FCC’s disclosure rules for broadcast licensees. Those rules were instituted in response to the “payola” or “pay for airplay” scandals of the 1950s.
Under FCC’s sponsorship disclosure rules, a broadcaster must disclose the sponsor of any commercial announcement, which includes any call to commercial action. That’s approximately “This is a great book (or a great recording), so get one today, only $19.95 at Blah-blah Books and Records.”
Failure to disclose the sponsor of a call to commercial action is a crime, or may be prosecuted civilly or administratively. A sponsor is any party who conveys “a thing of value” to the broadcaster in exchange for the commercial announcement. “A thing of value” usually means money, but can include property or services.
But here’s the saving grace: A book or recording, or even tickets to an event, delivered to the broadcaster for purposes of review and commmentary on the book, recording or event, is NOT considered “a thing of value” for purposes of sponsorship disclosure.
Apparently the FTC is unaware of the finer points of the FCC’s largely successful effort to police and prevent “payola”.
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October 8, 2009, 7:01 pmMLS says:
It usually helps to read regs before waxing poetic about them.
http://www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf
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October 8, 2009, 7:16 pmPatHMV says:
MLS... Thanks for the link. I’ve read through them, and they sound every bit as horrible as has been described.
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October 8, 2009, 7:29 pmMark Jones says:
How the new FTC regulations are intended to work (in my cynical opinion):
1. Blogger says nasty (possibly unfair, possibly true but not libelous) things about a politician.
2. Said thin-skinned politician gets his nose out of joint and complains to his good friends at the FTC.
3. FTC investigates blogger and discovers that–horror!–he once gave a complimentary review to a book he received from the publisher but failed to disclose this.
4. These two things (poorly received political commentary plus ‘payola’) combine to prove the requisite intent to be a meanie/screw the consumer.
5. Blogger gets leaned on by the FTC until he recants and/or stops blogging.
6. Politician is happy. FTC gets more money and power.
7. Lather, rinse, repeat.
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October 8, 2009, 8:08 pmHarryEagar says:
So, I blog about books that I read in uncorrected galley proof. How much am I supposed to pay for those?
On the other hand, raise your hand every blogger who gets free books to review and declares them as income at bookstore retail list price as income.
You’re supposed to, you know.
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October 8, 2009, 8:27 pmTatil says:
Oh, poor bloggers. It is so hard to say whether they received the item they are reviewing for free or getting paid to write nice statements about them. Oh, the big bad government, why do you have to make everything complicated?
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October 8, 2009, 8:52 pmPatHMV says:
Tatil, rather than sarcasm, would you like to explain why the government should impose a fine on some person who recommends a product just because they didn’t say “Full disclosure: I was given a free review copy of this book”? What actual benefit does that provide to anybody? If the examples I gave above are sufficient to comply with the law, does that give any consumer any benefit whatsoever? Is that benefit sufficient to justify allowing the government to investigate you, subpoena your bank records, and take money away from you?
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October 8, 2009, 8:57 pmanonymous says:
Maybe, PatHMV, because many of the biggie bloggers are also trading on their reputations in other professions?
For example, if I’m a blogging doctor and say that I found “X” nutritional product like protein power to be delicious, and then go on to discuss how it’s helped my body in a special way, less savvy reader/CONSUMERS are banking on that.
Ditto all these lawyer bloggers commenting on political/legal products, etc. (the etc. being the all-encompassing Big Pricetag items that I suspect the FTC is targeting)
Is that benefit sufficient to justify allowing the government to investigate you, subpoena your bank records, and take money away from you?
That’s something that each blogger is going to have to decide for himself. There really is an easy answer if you don’t want to play by the new rules and disclose who’s providing you what: open your wallet, pay instead, and decline the freebies. I know, I know — I can here the whining now...
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October 8, 2009, 9:28 pmTatil says:
People who make serious money reviewing products usually end up having to limit the negativity in their reviews. Too many very negative reviews in a row and you’ll find yourself off the list of approved people for free pre-release copies. There goes your income. By the way, this is true for conventional journalists as well. Your boss may not ask you to write puff pieces every now and then, but if you cannot score a pre-release copy of the hot new iPod or computer while the competitor websites or newspapers are able to run release day reviews, you cannot expect to be employed for very long. That’s why Consumer Reports never accept any samples or advertisement, as it creates this kind of dependency sooner or later. For example, ask yourself why almost no newspaper ran critical articles about GM management until bankruptcy was obviously inevitable. LA Times ran such a critical editorial a few years ago, arguing that the new CEO was in charge through the full design cycle that produced lackluster products such as Pontiac G6 or Chevy Cobalt, so he should accept responsibility and resign. If GM does not have attractive cars, it cannot expect to make money regardless of the pension benefits it needs to provide. Anyhow, GM pulled advertisements from LA Times as a protest. I don’t care how much editorial independence a newspaper has, this sends a message. For some reason, is it surprising that almost any media portrayed GM’s problem to be just due to retiree benefits and healthcare costs even though after every collective bargaining agreement GM made very positive announcements declaring that they received concessions from the unions making their labor costs comparable to non-union factories.
As a consumer, I’d like to know whether the reviewer gets free copies or some other benefits, so that I can decide how much I can really trust the reviewer’s opinion.
Now, could you tell me why it is such a big burden on reviewers to say whether they have received any free samples or other financial inducements?
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October 8, 2009, 9:44 pmPatHMV says:
Tatil... so why not just assume that all the reviewers have been compensated, unless they specifically say otherwise?
It’s not a matter of what the burden is (I think that bloggers should do it as a matter of good practice and ethics), it’s a matter of whether the government should MANDATE it, and impose fines as a consequence of failing to do so.
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October 8, 2009, 9:55 pmanonymous says:
Now, could you tell me why it is such a big burden on reviewers to say whether they have received any free samples or other financial inducements?
Perhaps because it will be embarrassing for some of the biggie bloggers to disclose exactly how much freebie swag they are taking? That, and maybe some of those IRS income regulations someone mentioned above.
so why not just assume that all the reviewers have been compensated, unless they specifically say otherwise?
Because I suspect plenty of bloggers don’t take the freebies and do pay out of pocket, so their words may be more genuine on products they liked or disliked etc., absent any personal financial interest. Skin in the game, and all that.
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October 8, 2009, 10:11 pmtraveler496 says:
Things such as this, along with the already absurd complexity of the law (of which ignorance, while unavoidable, is no excuse, with all that this implies), sometimes make me wonder whether a meta-law “each legislative act must on net reduce the complexity of the law” could, for some appropriate complexity metric, be a good idea.
Not whether such a law could ever be enacted, given the various complicating interests which would array against it. Just whether it could be a good idea.
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October 8, 2009, 10:16 pmPatHMV says:
anonymous... so the bloggers that are pure can say that, just like Consumer Reports promotes itself and its lack of bias based on the fact that it accepts no advertising and buys all tested products at retail. Again, why don’t you just assume the compensation, and let those bloggers who want a reputation for lack of bias make that claim affirmatively, and leave the government out of it?
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October 8, 2009, 10:24 pmBrian G. says:
At least we don’t have to live under Bush/Cheney/Rumsfeld/Ashcroft, who shredded the Constitution whenever it struck their fancy. Just look at how they tried to pry out what library books everyone was reading.
I don’t see anything wrong with this. We can trust Obama and the Democrats.
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October 8, 2009, 10:40 pmEli Rabett says:
Hopefully this applies to faculty and desk copies.
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October 8, 2009, 11:03 pmanonymous says:
anonymous… so the bloggers that are pure can say that, just like Consumer Reports promotes itself and its lack of bias based on the fact that it accepts no advertising and buys all tested products at retail.
Or ... you can more easily just put the burden on them’s that doing the freebie taking, and leave the “purist” blogs alone. Like I said above, those that don’t want to disclose under the new rules, can easily avoid that. I suspect plenty of the biggies are so attached to the freebie teat at this point though, that being independent might be a big hit to the wallet.
I’d much rather the default be lack of bias, writing genuinely, and let those doing otherwise own up to their sources. Particularly because it’s probably only a few of the bigger blogs they are concerned with.
I’m backing the new regs for the entertainment value actually. Can’t wait to see how much of the BIG STUFF — not books or trinkets but significant things of value — these guys are taking for free, and from whom, and not letting on. Kind of like the blogging equivalent of a kept woman. Heh.
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October 8, 2009, 11:03 pmPatHMV says:
And I’d much rather let the default be that the law does not get involved and penalize people for writing words that you can choose whether to believe or not.
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October 8, 2009, 11:43 pmRequired FTC blogger disclosure says:
[...] (who points out that he was on this issue earlier than any of us), ShopFloor, Dave Zincavage, Jonathan Adler/Volokh, Megan MacArdle/The Atlantic, Darleen Click/Protein Wisdom, Declan McCullagh/CBS (with some very [...]
Fub says:
Thanks for the FTC guide.
From Example #7 for 16 CRF § 255.5, Disclosure of material connections, it appears that the FTC takes a much broader view of what constitutes a “material connection” to the product’s manufacturer than the FCC takes in its sponsorship identification and disclosure requirements in 47 CFR § 73.1212.
In the FTC’s example:
Yet, for broadcast sponsorship identification disclosures, 47 CFR § 73.1212(a)(2) provides an exception to the disclosure requirement:
The blogger in the FTC example received the video game for use in, or connection with, publication of a review of same.
A broadcaster who receives a free recording, plays it and comments on it, is not required to disclose that he received the recording free of charge, because it was given “for use on, or in connection with a broadcast” and not “in consideration for an identification ... beyond an identification reasonably related to the use of such service or property on the broadcast.”.
I think any distinction between the two is without any real difference.
So, unless the FTC begins prosecuting broadcasters of reviews and comments, where the subject material of the review (book, music, show, etc.) was provided in conformance with 47 CFR § 73.1212, I think they’ll face major political and legal resistance for prosecuting bloggers for essentially the same acts (but not through an FCC regulated broadcast facility).
I’m taking the common sense view, not to be confused with a legal view, so I could be very wrong. It just makes no sense, and would be profoundly corrosive to civil liberties, to grant commercial broadcasters greater rights to express opinions without commercial sponsorship requirements than are granted to ordinary citizens.
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October 8, 2009, 11:57 pmmbkao says:
OOoooo me so scared!! If I violate the FTC guideline, how am I going to get caught? I’ll have been 1 of a million violators. Where the hell would the FTC get money to prosecute all these “criminal” bloggers?
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October 9, 2009, 12:19 amPatHMV says:
mbkao... that’s part of the problem. They’ll only bother you if you catch the attention of the wrong people, and since the rules will be such that almost everybody has violated them, they’ll be able to discredit you and intimidate you into silence.
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October 9, 2009, 12:26 amNickM says:
Let’s set forth some fairly realistic hypotheticals.
Mr. X is a baseball blogger. His local team sends him some free tickets. — decent seats that normally sell for $15–20 a ticket, but the game wasn’t going to sell out anyway. Is he legally required to disclose the free tickets if he blogs about that game? How about if he blogs about the team without specific reference to that game?
Now let’s suppose that Mr. X got the free tickets as a door prize at a team-sponsored event open to the public. Then what?
Now let’s suppose that Mr. X got the free tickets in a random drawing sponsored by the radio station that carries the team’s games. Then what?
Now let’s suppose that Mr. X got the free tickets in a contest of skill (e.g., first caller with the right trivia answer) sponsored by the radio station that carries the team’s games. Then what?
Meanwhile, Ms. Y is a music blogger. She is invited by a local station to a private performance in-studio at that station by an up-and-coming recording artist. The artist and her representatives have no control over who is invited. If Ms. Y blogs about the artist, but doesn’t discuss the station, is she required to disclose the invitation? What about if she discusses the station as well?
Now let’s suppose that Ms. Y won the tickets to that performance via participation in the station’s listener club (i.e., redeem points, accumulated by listening, for prizes). What, if anything, is she required to disclose if she blogs about the performance?
Now let’s suppose that Ms. Y won the tickets to that performance by being the right number caller to the station when some song was played. What, if anything, is she required to disclose if she blogs about the performance?
Mr. Z is another music blogger. He is given concert tickets by a radio station to a concert by a well-known band. The station was given those (and more) tickets by the concert promoter. The promoter has no control over who the station gives the tickets to. The station plays that band’s songs quite often. If Mr. Z blogs about the concert, is he required to disclose the invitation?
Now suppose that Mr. Z won the tickets to that performance via participation in the station’s listener club (i.e., redeem points, accumulated by listening, for prizes). What, if anything, is he required to disclose if he blogs about the concert?
Now let’s suppose that Mr. Z won the tickets to that performance by being the right number caller to the station when some song was played. What, if anything, is he required to disclose if he blogs about the concert?
Nick
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October 9, 2009, 12:40 amanonymous says:
Nick,
Why not just say if ya didn’t pay? Either way.
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October 9, 2009, 1:14 ambgates says:
I’m struck by how many commenters on this site are hostile to liberty. Quit “whining”, they say, and do as the government says.
I had thought Pat’s position was nearly universal.
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October 9, 2009, 2:13 amBaronger says:
What I find amusing is that this discussion is being limited to books.
The FTC is regulating any service or good.
What about a coupon you get in a paper for a free “new ultra deluxe” burger at the local McKingdy’s.
If you then blog about how you like the new sandwich offering you would have to disclose that you received a coupon.
I’m sure more people will have access to coupon’s for restaurants or other local services then access to galley proofs. Not that I would object to receiving free galley proofs.
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October 9, 2009, 3:28 amcorneille1640 says:
I didn’t read the regulations and my knowledge of how the FTC works is sketchy: Does the FTC simply impose fines or initiate prosecutions, or does it issue cease and desist orders (or whatever) and then prosecute (or issue fines) if they’re not obeyed?
I ask because my understanding is that at the time of its formation, the FTC did not have power to prosecute, but to refer cases for prosecution. If my understanding is correct, or if it is still correct after all these years, maybe what the FTC can do is more attenuated than the comments and Mr. Adler’s post suggests.
Another point/question: I agree that the guidelines are disturbing, at least as they are described here in this post. But does the whole issue raise the question of what counts as “commercial speech,” as opposed to “political speech”? As I understand it, “commercial speech” is less protected than is “political speech.” Maybe any prosecution or fine would hinge, in part, on whether the violator is found to have engaged in “commercial speech.” Perhaps this is also what Tatil, above, was getting at in one of his comments.
I’m not trying to defend the guidelines, which, again, I haven’t read. As a blogger myself, I’m disinclined to like any restrictions on what I write, even if hardly anybody reads it.
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October 9, 2009, 7:56 amanonymous says:
I had thought Pat’s position was nearly universal.
And I was told Bernie Madoff was a financial genius! Funny how things turn out in the real world.
If you want liberty, you are independent. You can’t assume independence, when your media is tethered to the corporate feedbags, collecting gifts and prizes for every complimentary “review”.
New media, old media — who’s paying for your lunch? For the roof over your head? For your kids’ clothes and games? For the toys and prizes you get in the mail?
I’ve got a feeling some very naive people are going to be shocked — shocked I tell ya — at just how non-independent and on the take some of these “reviewers” are.
How much money can you honestly make sitting home in pajamas, relying on the ads off the sidebar? It’s the perks baby, and the FTC just wants openness, to determine who — if anyone — is greasing the skids.
Trust me — all this talk about galley proofs and McDonald coupons is just a diversion. Our new media is just as corruptable, just as potentially open to making a fast buck, as anyone.
But I suspect we’ll all be learning more soon, once the rules kick in, and we get to see exactly how independent our new writers are, and who’s helping take care of them. Even Barack Obama needed a Tony Rezko, and surely before that disclosure everyone would have thought his top salary might have kept him honest.
Heck, even cops have to pay for their donuts nowadays! Suck it up, and disclose.
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October 9, 2009, 8:13 amPatHMV says:
anonymous, for someone so cynical about the world, I don’t understand why these regulations will make you feel any better. I presume, given your stated assumptions about everybody being on the take, that you don’t believe any reviews now, anyway. Is that correct? If these regulations are passed will you actually believe any of them in the future, or will you assume that reviewers who, say, consistently promote Apple products are receiving some sort of benefits from Apple to do so?
Again, the issue is not disclosure. The issue is mandated by the government under penalty of law disclosure.
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October 9, 2009, 9:50 amanonymous says:
Pat, we went all through this yesterday:
So why not just assume that all the reviewers have been compensated, unless they specifically say otherwise?
Because I suspect plenty of bloggers don’t take the freebies and do pay out of pocket, so their words may be more genuine on products they liked or disliked etc., absent any personal financial interest. Skin in the game, and all that.
What part are you still having trouble with? The “teeth” in the call to disclose? Ethically, they should but right now they’re not.
The biggie players don’t want you to know what they’re getting, and they’re hiding behind the Free McFlurry coupon and galley proofs scare to the little bloggers. Nope.
Like I said, I can’t wait to see them either turn off the spigots, or just reveal who is taking care of them via the freebie goodie giftbags. Don’t care if its celebrities, politicians, coppers, or bloggers on the teat. Just dislose, so we can separate the independent ones from the kept reviewers.
I’m sure plenty will be embarrassed at full disclosure and want to wiggle under the radar. It should be fun watching the wiggling at work too; the lengths some people will go to keep their comped goodies secret. Heh.
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October 9, 2009, 10:31 amtroll_dc2 says:
I know that this blog site is dominated by people who are inherently hostile to government (not that the government does not deserve strict skepticism), but you are letting your ideology outrun the facts. I am relying on my memory here, but I recall a New York Times Magazine article of maybe four years ago describing the marketing activities of a number of companies, including, if I remember correctly, Procter & Gamble. These companies recruited bloggers to receive free products and then write about them in a conversational style suggesting that they had just discovered a fantastic new product that they could not help but recommend. The readers were never told that this was a marketing ploy.
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October 9, 2009, 10:45 amPatHMV says:
Ok, so you want the power of government to be used to fulfill your own curiosity, and no other real reason. You already assume that most reviewers are bought and paid for, so it won’t actually provide anything other than entertainment value to you. Got it.
Troll_dc2... yeah, so? Nobody on here that I’ve seen has said anything to contradict what you just said. I was certainly aware of those tactics. The question to be asked is, so what? Why does that necessitate having the government use its coercive power to make people not do those things? Moreover, even if the P&G saga which you think you remember is something which the government should legitimately stop (and I don’t know that it is), why not tailor the restrictions much more closely, to target only that type of coordinated behavior?
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October 9, 2009, 10:54 amtroll_dc2 says:
What is your objection to requiring that someone who is pushing a product disclose that he was compensated for endorsing it? I don’t know about you, but I regard this marketing method as smarmy, even dishonest. If you don’t want the government to alert readers that the endorsement is not on the up-and-up, how would you deal with the problem? You may think that there is no problem at all, but I do not agree. The remedy is a simple and non-obtrusive one.
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October 9, 2009, 11:11 amanonymous says:
You already assume that most reviewers are bought and paid for,
Jesus Christ man, can you not read?
I suspect plenty of bloggers don’t take the freebies and do pay out of pocket, so their words may be more genuine on products they liked or disliked etc., absent any personal financial interest. Skin in the game, and all that.
What part of that are you missing?
Most don’t, some do. Disclose and since it’s not forthcoming voluntarily, prod them along. It’s not all that hard to put the burden on dem’s doing the takings, and leave the independent bloggers/reviewers alone.
Or do YOU assume everybody’s on the take, sucking up them free McFlurry’s and God knows what else in making their “independent” endorsements?
What exactly are you so afraid of here Pat that you have to deliberately mischaracterize the thoughts of others and dishonestly present them? How much money would it take for some to do that, I don’t know. But don’t assume everybody would sell themselve for a freebie whatever-it-is, no matter how pricey some of the gift toys might be.
Independence = something money can’t buy, but too many big players today are selling themselves out cheaply really for trinkets. I want to know who’s in what camp — so sue me.
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October 9, 2009, 11:17 amPatHMV says:
How would I deal with the problem? By telling consumers who fall for such things to wise up and think things through a little more. I solve it myself by largely relying on Consumer Reports for product reviews, and not magazines (much less blogs!), who I generally assume are either (a) not terribly well-versed in whatever product they are reviewing (and thus unable to anticipate whether the product will meet my own needs) or (b) doing so as part of some marketing mechanism.
Why is it the responsibility of the government to “fix” this problem, which exists solely because some consumers aren’t quite as cynical as you and anonymous (and I) are about marketers and marketing practices? If a consumer buys a bad book because some reviewer who got a complimentary copy wrote a complimentary review, is that harm so significant that the government needs to step in to punish potentially improper motivations in writing the review? If I’m deciding whether to buy Brand X stereo instead of Brand Y stereo, do I really need the protection of government when I read reviews about which one is best?
There would be absolutely no problem, if all consumers presumed that reviews were bought and paid for unless otherwise specifically stated. Wouldn’t that be a healthy mindset for consumers to adopt, anyway? Don’t you agree that the sneaky marketers will find some other way around the regulations (liquor companies already pay young popular college kids to hang out and drink their product and talk it up in bars), no matter these regulations? A better consumer mind-set would protect against all of those.
Further, nobody has yet addressed the point I made above, which is to say, what happens when all bloggers and reviewers simply post a disclaimer saying: “assume that I was given a free copy of whatever product I’m review on this site, unless I specifically say otherwise.” Does that meet the requirements of the regulations? If so, and most bloggers and other reviewers adopt that as a safe harbor kind of disclosure, is any actual benefit being provided to consumers at that point?
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October 9, 2009, 11:23 amPatHMV says:
anonymous... so let all the people who don’t take freebies say so, in order to enhance their own credibility. You’ve yet to make a case of any sort for getting the government involved.
I’m not disputing the benefits of disclosure. I think that folks should disclose when they’ve gotten something for free. I oppose only that the government mandate such disclosure by law. Do you have any way to actually address that issue? You’ve spouted off a lot in favor of disclosure, yes, but what are the benefits of having the law mandate disclosure, allowing the FTC broad discretion in deciding what constitutes violations and which violations to pursue? Why is that solution better than educating consumers to look more skeptically at things?
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October 9, 2009, 11:28 amtroll_dc2 says:
1. The problem is that bloggers often come across as non-commercial and write their endorsements in a style that does not look like an endorsement. That is why the marketing system is used. It gets at the people who do not spend much time looking at established media. You assume in your first paragraph that you undestand the situation, but I do not agree.
2. The FTC already has the power to forbid unfair methods of competition, as well as other police powers.
3. You seem to assume that what the bloggers turn out can be spotted as a review. That is often not the case. It can be a parathetical remark dropped into a discussion of something else. It can be an offbeat statement that really looks like the sort of thing that a friend would write. In short, the goal of this sort of advertising is to make what is written not seem commercial at all.
4. You are focussing on books. I strongly doubt whether books are much of a concern to the FTC as compared to other products (like whatever P&G is pushing). It seems to be pretty well known that publishers hand out reviewer’s copies. Still, I do not see what is wrong with requiring a disclosure that the book was given to the blogger precisely for the purpose of commenting about it.
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October 9, 2009, 11:38 amlucia says:
Good question Pat!
First: I’m pretty sure the P&G saga is true, but it may be more recent than 4 years ago.
Second: I suspect that what’s gotten the FTC’s knickers in a twist is the “mommy blogger” phenomenon. (See Mommy bloggers could be held liable.
I strongly suspect that many tech and gadget blogs must be receiving free goods and had been for a long time. This didn’t seem to alarm anyone with a large audience. But when companies formed to make it easy for blogs about hobbies, political rants, and just everyday happenings to make money by reviewing products and endorsing them, a number of vocal, widely read critics of pay-to-blog programs stepped forward. (Some critics were tech bloggers whose blogs are covered with advertising and who posted pre-release reviews of tech products. Go figure.)
The vagueness of the regulations are a huge problem because we really can’t tell whether the FTC is going after the tech bloggers, the mommy bloggers, people who run Amazon ads in the sidebar or what.
If the FTC is going to regulate behavior, it would be much wiser if the rule translated into some very specific activities. Like
a) “If you are required to write a blog post as a condition for receiving a free book, money, travel, yada, yada, then you must disclose this.”
b) “If you receive more than $50 worth of free merchandise a year from company A, you must disclose this fact in any posts about company A and
c) If you receive any monetary compensation on the condition that you publish a blog post describing a product, you must disclose the monetary compensation in the post.
With rules like (a), if publishers want to send 20 free books to 20 bloggers hoping the bloggers will write something, fine. If none of the bloggers write anything, tough luck for the company.
Rule (b) prevents from getting around (a) figuring out which ones will blog, and then eventually having a list of 20 who will blog for gifts.
Rule (c) means if P&G just gives you money to say “I love Pampers!” you have to tell people P&G paid you.
In addition to (a)-(c), the FTC needs to figure out what to do with stray paid links. For example, suppose for some mysterious reason, google will pay a blogger $2 to write a post with the words “dietary supplemants” linking to google. The blogger might write a long post discussing how she hopes to lose weight, somewhere in the post, you’ll read the sentences, “I’ve never taken any dietary supplements. I don’t really trust them. What do you think”?
Is it an endorsement of dietary supplements from the linked entity? (Google absolutely hates this practice by the way. They have been one of the groups campaigning for more regulation of any sort of pay-to-blog practice that involves dropping a link.)
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October 9, 2009, 11:45 amPatHMV says:
I do understand the situation. Yes, the marketers want to get independent-seeming bloggers to write stuff, so it will seem more authentic, more “mommy-next-door” rather than “corporate shill.” I promise you, I get it.
What is wrong with requiring disclosure is the same thing that is wrong with giving the government lots of other power. It can very easily be abused. I’ve been a prosecutor. I’ve seen at first hand how easy it is for regulators to target the low-hanging fruit, which is generally basically decent, honest people who tripped up over some detailed and hard-to-understand regulation. They’re honest, so they don’t try to hide what they’ve done and they admit it. Meanwhile, the real, flagrant violators are very sneaky, very deceptive, and lawyer up at first questioning, so they wind up continuing. Worse, they often manage to sneak in exceptions to the rules so that their particular practices don’t even violate the law. Certainly they can afford lawyers to litigate for a long time to come.
Want to put some burden on the manufacturers? Ok, I could probably live with that. Limit it to manufactures over a certain significant size, to avoid harassing small businesses, then I’d certainly agree to that. But write regulations that are so broadly written that they can land Joe Blogger in trouble with the federal government? And make no mistake, these regulations are broad. It’s not just that Joe has to say “I got a free bottle of detergent to review,” when he reviews that detergent. No, the FTC will have the authority to fine Joe if P&G periodically sends him free bottles of detergent or whatever and he ever writes about ANYTHING that P&G produces, even if they didn’t actually give him that particular product for free and didn’t even ask him to write that specific review. How much free stuff before that obligation kicks in? The regulations don’t tell us; it’s up to a “case-by-case determination” by FTC officials.
The devil is in the details. The concept sure sounds simple. But regulations don’t embody just the concept. They spell it out, in what almost always turns into confusing detail. It is those details which have great potential to make it overly burdensome to blog or write about anything.
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October 9, 2009, 11:53 amPatHMV says:
To attempt to clarify some more.
Is this bad thing so bad that it justifies giving the government power to punish people for doing it? Is it so bad that it justifies spending tax money on bureaucrats to enforce the rule? Is that tax money best spent on this purpose, or would it be better spent on some other purpose (the FDA and USDA to help protect the food supply, health care benefits for the poor, etc.)?
THOSE are the key questions to ask. We can probably all agree that disclosure would be better. If we could pass a law that required disclosure and everybody in the world would obey it and their would be no confusion and no enforcement costs and no abuse of power, then great, pass it. But all of those extra consequences in fact exist, and we have limited funds, so we must prioritize and look more closely at the harm sought to be prevented, the likely (or not) efficacy of such regulations, and the total costs involved before deciding whether the regulations are a good or a bad idea.
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October 9, 2009, 12:20 pmDan Weber says:
Do newspaper columns have to do this? I know someone who wrote a technology column for a major metro newspaper you’ve all heard of, and he got free stuff all the time and wrote reviews on it.
(He was pretty fair, sometimes saying that the product’s advertising was a lie. But he didn’t disclose that he got the stuff for free.)
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October 9, 2009, 12:55 pmpete says:
Think of how many free samples you have received before. Amazon sends free stuff in their boxes some times. I get stuff in the mail occasionally like detergent. Ever get a free sample in a grocery store?
Do coupons and other discounts count? I get coupons in the mail from big companies all the time some of which I am not even aware of becuase i throw them away without looking. The coupons still have value even if I choose not to use them. If I onced used a Burger King Coupon to get an extra free whopper do I have to disclose that If I want to review the burger king down the street on my blog?
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October 9, 2009, 3:21 pmplutosdad says:
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October 14, 2009, 2:03 pm