More on FTC endorsement guidelines re: free speech and journalism

by Susan Getgood on October 29, 2009 · 22 comments

in Blog with Integrity,Blogging,Ethics

When the proposed FTC guidelines for commercial endorsements and testimonials first hit the blogosphere last May, I did an analysis of the pertinent examples.  I did a quick re-take earlier this month when the final guidelines were published, and promised to update my analysis  for the new or changed examples. I’m still planning to do this update, probably early next week in preparation for Blog with Integrity’s next free webinar on November 1oth featuring Mary Engle, FTC associate director for consumer protection. In a town hall format, Mary will answer the community’s questions about the guidelines.

In this post, though,  I want to talk a bit more about the FTC’s stated intention to apply the  endorsement guidelines to social media but not to mainstream media (MSM) journalists. Some critics have labeled this an unconstitutional assault on free speech. Others are simply concerned about different rules applying to bloggers than to journalists when the differences between the two types of writers are not so clear cut. Not all bloggers are journalists, but some most definitely are.

I covered this at some length in my October post, but a few things bear repeating.

This is a trade issue, not a free speech issue. No one is limiting or restricting speech.  In my opinion, the FTC simply is saying that it will treat commercial endorsements  on blogs EXACTLY the same way it treats commercial endorsements in other media. New media does NOT get a pass to deceive the consumer. Neither does old.

Far fetched examples that imply that bloggers will have to remember forever where or how they acquired an item before they write about it in any fashion are silly.  For one thing, the guidelines are not retroactive. No one expects a blogger to remember something that happened many years ago. The principal tests are the reasonable person, which has been the test for years, and the degree of relationship. Got a free book yesterday? That’s close. 20 years ago? Not so much. There’s a common sense element that is deliberately being ignored.

Moreover, there is no new law here. Deceptive advertising – deceptive commercial speech – is already illegal. The precedent has already been set that we treat commercial speech differently in the United States than non-commercial. At issue is what constitutes commercial speech, and that will require a court test. The guidelines merely outline how the FTC believes it should enforce the law, including applying them to social media. The FTC’s interpretation will be tested in the courts when it eventually brings a case. Trial by media or press release has no standing.

There is some validity to the argument that bloggers are being held to a different standard than journalists. This is because the FTC  guidelines do not adequately clarify WHY there is a difference between personal bloggers and journalists. It’s not a free speech issue, nor are journalists somehow more ethical than bloggers. It’s all about the reasonable consumer’s  interpretation of the endorsement.

The FTC should have explained why it doesn’t think the consumer’s opinion would be impacted by the knowledge that the MSM reviewer got the item for free (page 47). I think, but the FTC did not explicitly say,  it is because we already assume that a MSM reviewer did not pay for the item. Either her employer purchased or paid, or the manufacturer comped. We also understand that the decision to review was motivated by the compensation paid to the reviewer as her salary. We already believe the reviewer was paid and comped. Thus the endorsement of the review is different than a blogger’s review – a person like us – who we assume purchased the item herself.

All the talk about whether bloggers get to keep products or not is a bit of a red herring. That reporters sometimes keep products or resell them, which is probably a violation of the editorial policy under which they received the goods, doesn’t make it RIGHT for bloggers to do so without disclosure. The important element is what the consumer believes, not whether the reviewer keeps the product. Or even whether the publication has editorial guidelines (more on that below) Compensation is just part of the test.

The FTC also should have been more clear that it looks at EVERYTHING on a case by case basis. The advertising industry, which has been affected by these guidelines for nearly 30 years, knows this. Bloggers don’t. Read carefully. On page 48 of the Notice to the Federal Register, the FTC clearly says that if a MSM reviewer received a direct benefit from a company whose products he reviewed/wrote about, the FTC stance could be different. This possibility is exactly why MSM has review and editorial policies, and why journalists don’t own stocks in the companies they write about.

There’s also a confusion created by the use and interpretation of the word blog. I think the FTC tried to clarify this by using the phrase “personal blog” but it’s not enough. The use of blogging platforms does not mean a site is a personal blog. That’s confusing form with content.

There are many  sites using blog and CMS (content management system) platforms that operate like MSM. Some are owned by MSM, some by individuals. They operate like magazines, with editorial policies, editors, assignments, compensation to bloggers etc. etc. For example, BlogHer and Cool Mom Picks.

If a site like this has a clear published editorial policy, runs like a publication/business, probably compensates its writers directly,  it should be treated the same way as an MSM publication. There is NO reason why a shopping review site owned by two individuals should have different guidelines than one owned by Conde Nast IF THEY OPERATE IN THE SAME WAY. Fundamentally, I think the FTC will be treating them the same way, but it should have been more explicit.

It boils down to the consumer’s expectations and the difference between a “personal blog” and an “online magazine, portal or review site.” Writing for Ad Age, whether online or off, and Cool Mom Picks is different from writing A Cowboy’s Wife or Marketing Roadmaps. Disclosure on every post should not be required if the consumer would understand the situation without it. However, a clear  editorial policy is.

This line of thinking  could probably be extended to any review blog devoted exclusively to a single sort of product that you have to buy to consume when new – books, movies, theater. Less so TV and music. For example, books.  In my opinion, if ALL you do is review books, a broad disclosure/editorial policy should be sufficient. If you have a personal blog that talks about your life and family, or even a marketing blog that is usually about social media, and up pops a book review, you should probably say whether you bought it or got it.

This, however, is merely my educated opinion. I’d really love to see the FTC clarify this with an example. In fact, this will likely be one of my questions for Mary Engle during the webinar.

I also plan to ask her to expand on her comments to KidLitCon 09, as covered in Publishers Weekly:

Moreover, Engle said the revised guidelines are aimed at advertisers and marketers, not individual bloggers. She cited a Procter & Gamble campaign called “Vocalpoint,” which provided “400,000 moms” with free products in exchange for endorsements made via blog posts and tweets.

“If these moms are posting about how great Tide is or Febreeze, that wasn’t just because they tried it and they loved it; it’s because they are part of P&G’s marketing campaign and that relationship needs to be disclosed,” said Engle, who also admitted, “We probably could have done a better job of describing the distinctions between people who write blogs about books and the moms who are part of P&G’s team.”

What are the  distinctions? How does this focus apply to the large blog networks and the bloggers who participate in their programs?

But enough of my questions. What would you like to know? Questions should be submitted in advance by November 6th to blogwithintegrity@gmail.com.

Disclaimer: Most of you know by now, I am not a lawyer but totally geek out on reading legislation and policy docs.

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