Blogger Beware

The Federal Trade Commission has recently announced its new Guidelines Governing Endorsements and Testimonials and perhaps unexpectedly there’s reason for bloggers to take note (emphasis mine),

Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results not typical” – the revised Guides no longer contain this safe harbor.

The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.

The news has been met with mixed reviews from various blogging corners, but I think Jack Shafer over at Slate is about pitch perfect in his response,

Allowing these guidelines to take effect would be like giving the government a no-knock warrant to investigate hundreds of thousands of blogs and hundreds of millions of Facebook, MySpace, and Twitter users for … saying nice things about goods and services. Cleland tells Ad Age that a restaurant employee who gave his eatery a good review on Yelp would have to disclose. Given the billions of opinionated postings on the Web, there would be no end to FTC’s work.

Because of a pesky thing called the First Amendment, the guidelines don’t apply to news organizations, which receive thousands of free books, CDs, and DVDs each day from media companies hoping for reviews. But if the guidelines don’t apply to established media like the New York Review of Books, which also happens to publish reviews on the Web, why should they apply to Joe Blow’s blog? Regulating bloggers via the FTC while exempting establishment reporters looks like a back-door means of licensing journalists and policing speech.

Additionally, I would offer that these guidelines smack of unnecessary governmental overreach and the worst components of nanny-statism.

I mean, look, there is a fundamental difference between what the FTC is proposing here and the kinds of protective measures that entities like the FDA and the EPA provide on issues that involve a broad range of complex and dynamic factors that can have both insidious and far reaching impacts if not taken into consideration. Which is to say that I’m not going on some kind of knee-jerk anti-regulation rant. There is good use for many of the regulations we use to protect individuals from negligent to malicious behaviour on the part of a host of actors in a variety of fora.

But part of what I think the FTC is essentially saying here is that people are just too dumb to take into consideration that people who blog and Twitter and otherwise utilize the host of social networking platforms that are out there may not be the best source of information when considering important purchases. That being the case, the FTC had better step in to provide measures to protect the unwashed masses against their own ignorance. For all my support of government involvement in areas of people’s lives where said involvement makes some degree of sense, this sentiment strikes me as the essence of low-balling individual capacity for critical thought into a dependence on the state that, over time, fundamentally erodes the expectations we have both of ourselves and our fellow citizens.

As Shafer also notes, the FTC has done some important work around issues of credit card fraud and anti-trust law, so it’s not as though I’m suggesting that the agency as a whole ought to be condemned. But this particular step strikes me as lopsided and wholly unnecessary and, as such, deserves to be met with the same kind of derision upon which its underlying premise seems based.

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Tags | bloggers, FTC endorsement testimonial guidelines, Jack Shafer, new media, Social Networking