FTC Guidelines On Blogging and My Conclusions and Confusion

By Mike Maddaloni on Friday, November 06, 2009 at 01:00 PM with 0 comments

Bloggers are all in a tizzy over updated guidelines on product endorsements and testimonials by the US Federal Trade Commission (FTC). As The Hot Iron frequently talks about companies, products and services, my interest in these guidelines has been high. This led me to reading the complete text of the Q&A process over the guidelines as well as the revised guidelines themself. These are linked from one page on the FTC’s Web site on the guidelines which now includes videos.

These guidelines do not only pertain to bloggers, and also includes traditional media – TV, radio, print – with regards to any testimonials and celebrity endorsements. Part of this pertains to advertisements that make claims that are not typical for the average user, and now must state what the average user would experience. If you think pharmaceutical ads are annoying as hell, just wait to see how every other commercial out there will be complying with these guidelines.

As you may infer by tone, I am not in favor of this. I am not alone, as many trade industries and law firms submitted opinions against it, namely for bloggers. As traditional advertisements has been around for thousands of years – from the snake oil salesman to digital billboards – and blogging can probably be traced back about 10 years, many opinions felt these guidelines are premature. But the bureaucrats at the FTC disagree, and here we are.

After reviewing all of this material, I am presenting my conclusions on this, as well as a list of questions not addressed in the guidelines. This is all my opinion from my very own head. I am not an attorney, rather someone who understands the power of social media and the reality of the world.

Conclusions

The following are my conclusions from the FTC guidelines.

Disclose Either Way in Each and Every Blog Post – The guidelines state that if there is not a relationship between the blogger and a company, no disclosure needs to be made. But what if, after reading a post, the FTC thinks there is a relationship there? The last thing you want is federal bureaucrats subpoenaing you. It is better to state this in anything you write.

When in Doubt, Lie and State There is a Relationship – Let’s face it folks, the business world is complicated, and business deals are happening every minute of every day. One minute you may write something favorable about a company, the next minute the manager of a mutual fund you own may buy shares of that company. You wouldn’t know this, but the FTC’s investigators would. Plus, there does not appear to be a penalty for stating there is any type of relationship when there really isn’t one.

Get a Good Lawyer – In this litigious society, everybody should have a lawyer. Every small businessperson should have one already, and if not, there’s no time like the present.

Confusions

Where the language used in the FTC documents is relatively easy to read, as least for me it was, it left many unanswered questions for me. These are reflected in my conclusions above, but I feel they need to be addressed here, namely to identify the gaps I found in these guidelines.

How Will These Guidelines Be Enforced? – Is the FTC filling rooms with computers and people to search for product and service blog posts and dig through them for endorsements or testimonials without disclosure? Thinking about it more, that will probably be the case.

The FTC even skirts the issue if they will sue bloggers in this video which is on their Web site – it is embedded below, or click this link to watch the video.

Clearly not following these guidelines has penalties, and they should simply say it.

How is this Different from Movie Reviewers or Journalists – This is not an argument about bloggers being journalists, as some are and some are not. I do not consider myself a journalist. In conversations with real journalists, they have said they never typically disclose any freebies given to them. I have never heard Roger Ebert mention he goes to the movies for free, yet it is my guess he does. Yet these guidelines do not apply to journalists.

What if Someone is a Poor Writer? – Someone could have bought a product off the shelf and then wrote about it in their blog, using language like, “this is the bestest video game in the world... if Michael Jordan made video games he would have made this one… if you don’t buy this game you are a fool… everybody should own this game,” which could clearly be considered a testimonial and could even be inferred the writer has a tie to the video game.

Is There a Difference Between Free and Loaned Products for Reviews? – Say you get a product to keep vs. getting one to use for a few weeks, is there a difference there? It could be inferred you profited by having the product’s use during that time.

What about Negative Reviews? – The guidelines appear to address endorsements, but what about a negative review of a product, even if a company gave you that product? My guess is you still need to disclose this, even if the blog post discourages people from buying it.

Who Defines An Expert Blogger? – There’s mention in the guidelines about “expert” bloggers. Who makes this determination? Ask any blogger and I am sure they will say they are one. But if it means they are a close target of the FTC, I am sure they will shun the title.

Does a Disclaimer Have to be Within the Blog Post or Just Somewhere on the Blog? – Many people read blog posts from the Web pages of the blog, others by RSS feed and even others by email. Must the disclaimer be written within the post itself, or is it sufficient for it to be somewhere on the Web page?

What about Blog Comments? – An endorsement or testimonial could be added to a blog in the comments. Who then would be responsible, especially if the comments were posted anonymously or the blogger did not know the person and could not verify if they were a real person or not?

What about Microblogging? – Microblogging, or tweets on Twitter for many people, doesn’t give you much room to make an opinion as well as disclaim any relationship. Does this mean you will have to write text elsewhere stating the relationship and include a short URL in the tweet?

What about Forums? – At the end of one of the FTC documents it mentions forums. Maybe if you post to a forum you should put your disclaimer in the post signature area?

What about Old Blog Posts? – Will I and every other blogger out there have to edit all of our past blog posts to indicate any business relationships?

Are there Geographical Boundaries to This? – What if the writer of a product review is outside of the US, but his Web server is inside the US? What if the opposite? What if both are outside the US but the company being reviewed is inside the US?

What about My Trip to Nokia OpenLab? – As I mentioned in a previous post, Nokia flew me halfway around the world and wined and dined me when I participated in OpenLab. Must I always reference this each and every time I make a reference to a Nokia product in any capacity?

Final, Chilling Thought

When I read one of the documents, one word stuck out to me – chill. It is used as a term to describe the change in activity as a result of these guidelines, as in a freezing of blogging activity as a result. I wasn’t aware “chill” was a legal term. Nonetheless, I don’t think these guidelines will chill or stop any word-of-mouth or personal thoughts on companies, products and services. If anything, it will spark a new wave of ways for people to talk about products without fear of The Man coming down on them. This is the entrepreneurial resourcefulness here in the US, and it isn’t dead yet!

So what do you think? Any help in analyzing this is most appreciated. But make sure you identify who you are and any business relationship you may have with me, ok?


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