New FTC rules for bloggers will be as unenforced as they are unneccesary.

There’s been lots of buzz this week about the Federal Trade Commission’s first-ever guidelines for bloggers — specifically those who endorse products.

Today, the FTC is clarifying that it won’t actually fine bloggers who fail to disclose whether they were compensated for coverage. (Though the business being written about could still be on the hook.) The announcement is good news for millions of Americans who write posts online, but it also raises the question: “What’s the point of all this?”

Here’s how FTC Assitant Director Richard Cleland explained the situation to the PRNewser blog:

"We have never brought a case against a consumer endorser and we've never brought a case against somebody simply for failure to disclose a material connection. Where we have brought cases, there are other issues involved, not only failing to disclose a material connection but also making other misrepresentations about a product, a serious product like a health product or something like that…

“If people think that the FTC is going to issue them a citation for $11,000 because they failed to disclose that they got a free box of Pampers, that's not true. That's not going to happen today, not ever."

So essentially, the FTC has implemented a sweeping new interpretation of the Federal Trade Act, one that theoretically regulates how any consumer can discuss a product or service that was given to them by a company.

Then they make the definition of paid coverage so vague and byzantine that you’ll likely never even know if the rules apply to you. Here’s a telling excerpt about free samples:

“For example, a blogger could receive merchandise from a marketer with a request to review it, but with no compensation paid other than the value of the product itself. In this situation, whether or not any positive statement the blogger posts would be deemed an ‘endorsement’ within the meaning of the Guides would depend on, among other things, the value of that product, and on whether the blogger routinely receives such requests.”

I know that legal interpretations have to remain flexible, but come on. If I’m sending a blogger a free box of snacks for a client, how will either of us know whether this 81-page set of guidelines applies to either of us? The only safe route for the blogger would be to write nothing or write something negative. Fantastic.

Couple this confusion with the fact that the FTC apparently won’t enforce these rules 99.9% of the time, and you have to wonder if this is anything except an overly broad limitation on a blogger's voice.

Don’t get me wrong. There are major parts of the new guidelines that I support with great vigor. The crackdown on blatantly deceptive ads with disclaimers like “results not typical” is long overdue.

And yes, blog readers deserve transparency. But bloggers also deserve privacy in their finances, and they shouldn’t feel compelled to disclose every aspect of their paying relationships with companies. People who clamor for such details are usually doing so out of nosiness or good-old-fashioned jealousy.

I’ve worked with bloggers on both paid and unpaid projects, and I’ve always encouraged them to be open with readers. But how they manage their personal level of transparency is up to them. I think it would be offensive for me to tell them what to say on their blogs, much less for the government to do so.

To recap, the new FTC rules — at least in respect to bloggers who might want to connect with businesses — are intimidating, tremendously broad, nearly impossible to interpret and designed to go unenforced.

The intent is commendable, but the reality is a document that spends most of its time listing exceptions. Why? Because in this case, exceptions are actually the rule. Poorly disclosed or potentially misleading blog posts are simply not a major problem in the lives of American consumers. This is somewhat like passing a sprawling regulation on aluminum ladders just because Jackie Chan occasionally uses them as a weapon.

At a time when companies should be applauded for dealing directly with consumers and treating them with the same VIP status long accorded to journalists and celebrities, these guidelines are a baffling new obstacle and a back-handed attack on our First Amendment guarantee that “the Congress will make no law abridging the freedom of speech.”

Today's photo credit: AlbinoFlea on Flickr.

Comments

[Zackery M]

Hey, Griner.

When I first heard about the FTC's rules for bloggers I thought it was a great idea. After reading your post I still think it's a great idea. Your objections are understandable and stirred my opinion.

But...

Theses rules, if enforced in all the right ways, will do us a favor by making blogging a more respectable profession. Right now calling one's self "professional blogger"
is like a secretary claiming public relations experience because he or she answered the phone.

Blogger should be accountable in the same way journalist are when an organization sends free products or samples for review. To me it's unacceptable to pay a blogger and I compare it to bribing traditional media pros. At no point should a blogger make a profit from an organization for reviewing a product or sample.

It's different for a blogger to be paid for writing for an organization's blog. I compare it to a writer producing a newsletter, internal media, etc.

And I don't have to explain why it's bad for a blogger to lie just because he or she got a product or money. There are definitely those kind of people out there.

I know that this isn't a perfect world and if the new rules are enforced there is no guarantee it will be the way they were meant. But it's a step toward holding would-be professional bloggers accountable and reaching the equilibrium we need for blogging to become more respectable as a real job (because when anyone can call them self a professional blogger, no one really is).

Z

[David Griner]

Thanks for the thoughtful reply, Zack. But I think you point out my major beef with these rules: they don't hold bloggers to the same standards as journalists. They hold them to an even stricter standard.

Are journalists required by law to disclose when they've received free products for review or other compensation? Nope.

I recognize that the FTC is trying to clear up a gray zone between objective content and paid advertising, but I simply don't think this is a role that the government is capable of managing.

I think free speech thrives when our ethics are guided by our peers, not by our government. This is a classic example of regulation without enforcement or even necessity.

[Promotional Products]

I agree, the specifics of this judgment are so vague I don't understand how they will enforce them. I've been reading that they might make an example out of a few writers in order to discourage the others. What are your thoughts on them possibly making examples out of the few to discourage the masses?