More from Walter Olson on the potential scope of the FTC’s new regulations governing bloggers and other social media users.
It’s been much asserted of late that it’s no particular burden to disclose when mentioning a newly published book or quoting from a newsworthy speech that the publisher sent you a review copy or the conference-giver let you into the hall on a press pass or its equivalent. But the regulations clearly contemplate broader disclosures than that. At some point, acceptance of such benefits will be deemed to create a relationship that must be disclosed even on other occasions, when, say, you mention an author or a nonprofit institution in a different context six months later.
dean wermer says:
Don’t see why not under the FTC’s stated line of reasoning. Better yet, do the regulations cover product comments and reviews on sites such as Amazon, itunes, etc.? Do those sites have an obligation now to police their comments and verify that the posted reviewers are not violating the FTC regulations. Again, I don’t see why not under the FTC’s stated line of reasoning. Amazon reviews tend as a general matter to be quite helpful in assisting consumers in deciding amongst products, and it’s already pretty obvious on the site which reviews are well reasoned and helpful and which are just shills (or unreasoned critiques). The number of star ratings, the distribution of star ratings and the accompanying commentary are all extremely useful. So why would the FTC do anything that would potentially decrease the participation (there’s a risk now for commenters/reviewers) and usefulness of such consumer rating systems (which are typically more useful than professional critiques — i.e., than MSM reviews). Idiotic.
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October 14, 2009, 9:41 amGaryM says:
I recall previously seeing that Twitter posts must have disclaimers (which I think gives you just room enough to say “nice product”), so I assume that the FTC goons will go after blog comments as well if they want to build a case against someone.
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October 14, 2009, 9:55 amBreadth of FTC blogger regs says:
[...] coverage here and here (& welcome Glenn Reynolds/Instapundit, Jonathan Adler/Volokh [...]
zuch says:
Markos Moulitsas over at DailyKos rips into this stoopidity.
Cheers,
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October 14, 2009, 11:41 amMikee says:
I hereby state that any blog comment I ever made, or will ever make, may be biased by my receipt, knowingly or unknowingly, of goods, services, money or other kinds of beneficial actions from, or beneficial relationships with, those about whom I have ever in the past, or will ever in the future, comment. I am making this statement on a public and well-read blog about law, so that this disclosure will carry more weight in my defense when I am brought up on charges of violating FTC regulations about commenting publicly on blogs without disclosing possible relationships that could influence my statements, opinions, and recommendations.
By the way, great blog! I highly recommend it to all and sundry. I find it wonderfully erudite, informative, entertaining, and fun. I got nuthin’, repeat NUTHIN’ AT ALL from this blog for writing that. Except for maybe some good info on items to discuss at work around the water cooler, and a better understanding of the Supreme Court Heller decision.
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October 14, 2009, 11:45 amMike S. says:
1) So do I understand correctly that if some firm sends me the same sample they are sending 10 million other people and I throw it out along with 9M of those 10M, I can never comment on the firm’s other products unless I keep track of this and disclose it?
2) While the cost to the writer of adding a disclosure may be minimal, the cost to the reader is not. When too many disclosures and warnings are required people tend to tune them out. This means they may miss important ones. This is more problematic for safety warnings, than this sort of obligatory speech, but it is still a problem. Thus safety warnings ought to refer to serious and non-obvious dangers.
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October 14, 2009, 11:48 amdean wermer says:
Mikee and Mike S. zero in on why the FTC regs are self-defeating. The regs will lead to ubiquitous, meaningless disclosure, which readers will ignore and tune out from. End result — diddly.
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October 14, 2009, 12:43 pmSteve says:
The regs will lead to ubiquitous, meaningless disclosure, which readers will ignore and tune out from.
Well... sort of. The regs are dumb, of course, but setting that aside, the sort of disclosure that goes “everything I write in the future may possibly carry a conflict of interest” is hardly sufficient to satisfy any legal requirement. People are just being cutesy when they write that sort of thing.
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October 14, 2009, 1:01 pmSandy MacHoots says:
The regs aren’t dumb. This isn’t the result of bureaucratic stupidity, it’s part of a deliberate plan.
Start with the idea that the government is not your friend, and that it doesn’t want you interfering with its activities. It’s not worried about information in the large corporate media — it’s easy to monitor it and experience shows that you can often bribe or co-opt reporters and media.
But the government can’t monitor or co-opt millions of individual Americans exchanging information. And the free exchange of information is always inimical to governments. So the proposed regs are designed to terrorize individuals into silence. A few well-chosen prosecutions — even if the subjects are found innocent — will have a massive chilling effect.
Note that even if the first dozen district courts throw the regulation out as unconstitutional, the government can still bring actions until the issue is finally “resolved.” Any blogger would have to be pretty rich and pretty brave to resist.
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October 14, 2009, 1:27 pmdean wermer says:
@Steve: well, yes, your example probably does not achieve compliance, but I think we each could come up with examples of arguably compliant language that would essentially be viewed as and glossed over by readers as “boilerplate”. E.g, when was the last time anyone actually read the “forward looking statements” disclosure in a securities filing?
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October 14, 2009, 1:40 pmdean wermer says:
@Steve: And when I suggested that the result would accomplish diddly, I meant that from the FTC side of things. From the public’s side, (i) there will be some chilling effect (some people will not review or give up reviewing or review less — all at a loss to public benefit), and (ii) some poor souls will likely at some point be caught up in FTC enforcement.
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October 14, 2009, 1:47 pmSteve says:
The regs aren’t dumb. This isn’t the result of bureaucratic stupidity, it’s part of a deliberate plan.
If you’re not one of Glenn Beck’s scriptwriters, you ought to be.
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October 14, 2009, 1:49 pmKenB says:
Blog comments are bad enough, but what about something like Angie’s List? I have left favorable comments about businesses I have patronized. In at least one example, the business did some work for which it did not charge me. There was no quid pro quo (I don’t know if, to this day, the business knows about Angie’s List), but that experience led to the warm fuzzy feeling that caused me to leave the reference.
Being required to disclose the extent to which you may have gotten a good deal when you leave a consumer reference is absurd. And what about Ebay ratings of buyers and sellers? Is there a principled distinction exempting them?
This is the type of rule intended to give the government an avenue to come after you any time they are unhappy with you for any reason.
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October 14, 2009, 1:56 pmSteve says:
There was no quid pro quo (I don’t know if, to this day, the business knows about Angie’s List), but that experience led to the warm fuzzy feeling that caused me to leave the reference.
My thinking is that even if there were an actual quid pro quo, the existing consumer protection laws would be sufficient to deal with any harm caused. For example, if a company pays people to offer phony testimonials, that sounds like a deceptive trade practice that is likely actionable under state law. Meanwhile, the much more common situation like you describe remains unaffected.
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October 14, 2009, 2:00 pmCharles N. Steele says:
I volunteer to be the test case! Will everyone please start sending me free stuff?
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October 14, 2009, 4:52 pmJohn A says:
I suppose that when I post a comment about food or a food-related topic, I should disclose that until twelve years ago I worked in the offices of a national restaurant chain. Do I have to mention its name? Oh, and before that I worked in the offices of a department store chain, so I suppose that covers commenting about nearly all other products.
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October 14, 2009, 5:03 pmjosh bornstein says:
Geez. With all the complaining; you’d think we’d all be targets of silly prosecutions. I prefer to be a bit less fearful (which may be a result of having led a fortunate life up-till-now). Why not take 8 words to disclose the free stuff you got? Yes, there is a danger of people tuning out these disclosures. But, if most people are anything like me, they will suddenly pay close attention when it comes time to make an actual purchase.
For instance, right now, I am doing my basic research on buying a pro-level digital camera. I might well gloss over all that extra language at this point when I read reviews and recommendations. But when it comes time for me to make an actual purchasing decision, I will look at review sites like Amazon (where the users’ feedback can be extremely helpful and persuasive, and has influenced my buying decisions on many occasions), and will *carefully* look for phrases like, “based on a free sample.”
What is the big deal? I’m asking this genuinely . . . based on the above posters’ comments, it’s clear that I’m in the minority on this issue. Is is fear of a slippery-slope? Is it fear that–even if the proposed regulations do not lead to more onerous ones down-the-road–it’s still a bad idea, on balance? Is it a general distrust of (over-reaching??) governmental regulations?
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October 14, 2009, 5:22 pmChrisTS says:
josh bornstein:
.
I’m glad someone else asked this. I don’t get it either, especially in light of the many ‘oh, I’m just an unbiased person like you who thinks X is FABULOUS!’ sites that are actually financed by someone trying to sell X.
I believe the answers are : yes, yes, and yes.
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October 14, 2009, 6:09 pm24AheadDotCom says:
Could this cover sockpuppets who are promoting a candidate while being employed by that candidate or an affiliated group? That would certainly be very, very interesting considering the obvious sockpuppets I’ve seen here and there.
Could it be used to find out who this person works for? I’m not accusing him of anything, but he does start a lot of social media threads and it would be interesting to know if he’s working for someone who would profit in some way from what he covers.
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October 14, 2009, 6:37 pmNorthern Dave says:
Am I being too naive or is this really just targeted at the reality of some blogs simply being fronts for product promotion (Person X receives 2 brand new autos and — without disclosing such — proceeds to use their “UFO’s Are Here!” site to promote those autos as part of an agreement with Auto Company Y without delineating their relationship on the site). As such I have no problem with it. Neither do I have a problem with “UFO’s Are Here!” promoting auto Y if they proclaim “This Site Supported by Auto Company Y” clearly on the site.
Mind you, 20 years ago I got a “Coke”(tm)from a person representing Political Party “X”(tm) who now works for Multinational “H”(tm).......
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October 14, 2009, 7:37 pmSandy MacHoots says:
Thanks. Since Beck is (by my count) 5–0 against this administration, I’ll take that as a compliment. You can write the speeches for Obama. He needs the help.
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October 14, 2009, 8:02 pmLayman says:
I’m just a layman,but the question I have is will politicians have to fully disclose when they write on The Huffington Post and other blogs ?
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October 14, 2009, 9:57 pmAdam B. says:
FTC regs only apply to commercial goods and services, not to political speech.
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October 15, 2009, 11:00 amNickM says:
josh — in states with broad unfair business practices laws, you could be sued by a private party for an alleged violation of these regulations.
Nick
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October 15, 2009, 11:29 ammarkm says:
I don’t think freebies are the main thing you should worry about. It also requires disclosure for cash payments. Like for sidebar advertisements — which are often contracted through third parties who generally allow you no control over what is advertised, change the advertisements without going through you, and may even merge in different advertisements for each reader depending on their browser histories.
So if you ever unknowingly speak of an item that was advertised on your sidebar, you are technically in violation. Of course, the feds will forgive minor transgressions like that — until you piss them off.
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October 19, 2009, 5:59 pm