First, I don’t understand how an administrative document that informs how an agency intends to enforce existing law can be on its face unconstitutional. Laws are unconstitutional. The FTC guidelines do not have the force of law. In the very unlikely event that the FTC pursues legal action against a blogger who receives free product as compensation, we’ll see how the courts respond. That will then become part of the body of law and potentially grounds for a constitutional challenge. Until then, talking about constitutionality is sound and fury…

I noticed that the author of the article uses the term “unpaid blogger” a lot in the document, and expands unpaid to include bloggers who receive free products as well as those who are truly unpaid. If you are truly unpaid for your endorsement, your speech is not considered commercial and the guidelines don’t apply. To exempt free product however opens up a nasty slippery slope. Guaranteed there will be abuses. Ethics demand disclosure but not everyone is ethical.

IMO the guidelines actually provide MORE protection for bloggers than we would have without them, not less. Without them, I can absolutely see unethical companies pushing all liability down to the blogger.

As to the argument that the guidelines hold bloggers to a different standard. Not true. It is the same standard. In traditional media we expect a delineation between advertising and editorial. It’s why we have the concept of advertorial content and infomercials are labeled as such. We — consumers — need the same thing in social media when advertising looks like editorial. As I’ve written here before, the argument that journalists don’t have to disclose when they got a free meal or whatever is irrelevant, because the guides are about what the consumer understands, not what the writer did or didn’t do. The consumer knows that the restaurant reviewer from the NY Times is paid to do his job and that the paper pays for the meals, not the person. We usually don’t have that same information about a blogger.

That’s my opinion. Ultimately, the courts will decide. As to why the FTC didn’t pursue legal action against Ann Taylor, you’d have to ask it. I think it’s because the company made corrections and the harm was minimal. The FTC would rather NOT go to court. That’s expensive. It’s much better to resolve things with a warning.

Now I wonder if the FTC dropped the Ann Taylor case because they’re concerned with lawsuits on free speech than reprimanding advertisers for flakey disclosure.
.-= Anne-Marie Nichols´s last blog ..I’m one of Babble’s 50 Best Mom Food Bloggers =-.

Thoughts on the FTC investigation of Ann Taylor LOFT blogger event …: This is compounded by the contest-like ele… [link to post]

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