New FTC Rules for Bloggers

If you’re a blogger, you’ve probably already heard about the new FTC rules regulating Internet posts. These rules take effect on December 1, 2009. If you want to read the full text, go here: http://www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf

The basic idea is to require a blogger to disclose whether they’ve received free products, services, or been paid a fee for what it is they’re blogging about. Although unlikely, failure to comply could result in the blogger being fined up to $11,000.

So how can you violate this new statute? Really, it’s not that hard. Since this is a writer’s blog, I’ll try to put it in a writer’s perspective.

1 – Blogger receives an ARC for review. ARC’s are always free and there is always an understanding that just because it’s free doesn’t mean the blogger is going to give it a good review. However, if the blogger fails to explicitly state that the ARC was free, that’s a violation. This goes for anything the blogger receives for free.

2 – Blogger receives a fee for the post. Even if the blogger has explicitly stated that payment doesn’t guarantee a good review, he or she still has to reveal that there was payment for the post. If they don’t, they’re in violation.

Let me tackle these two first. Most bloggers are already doing this (Example: http://www.staygolinks.com/policy-on-paid-reviews). I rarely see this for book reviews, however, and that’s for one obvious reason – everyone already knows how that game goes. Movie reviewers get into movies for free and we all know how eager they are to hand out bad reviews. Do you really expect Roger Ebert to announce before his next review that, “By the way, you ought to know that I saw this movie for free.” Ridiculous.

Now the next two are where it gets a little scary to me.

3 – Social networking sites also appear to be affected (p. 54). Let’s say you as a writer are given free entrance to a writer’s conference and then you become a fan of that conference on Facebook, or Twitter about how great the conference was. Fail to disclose that you got in free and risk being fined. Yep, you have to fit that disclosure into your 140 Twitter characters or you’re in violation.

4 – The rules also appear to apply to people who make posts about a place they are employed (or their publisher, perhaps). If I’m published by Scholastic then make a Twitter post saying how amazing I think Scholastic is, without disclosing that Scholastic is my publisher, yep, I’m in violation. Or maybe I’m in a chat room and the conversation is comparing Scholastic versus another publisher. If I start bragging up Scholastic without disclosing, yep, that is a violation of the new FTC guides.

Okay, so this is where I have to make a little disclaimer. Is it likely the FTC is going to institute fines for my Facebook status? No. In fact, Richard Cleland, with the FTC has clarified that it would usually only result in a warning letter, but the FTC reserves the right to take the matter to court, where a judge could impose a fine. He said, “We don’t have the resources to look at 500,000 blogs. We don’t even have the resources to monitor a thousand blogs. And if somebody reports violations, then we might look at individual cases…Right now we’re trying to focus on education.”

Ah, but did you catch that little exception in there: If somebody reports violations, then we might look at individual cases.” It reminds me a little of the White’s House’s request to forward anyone’s emails who were giving out false information about health care reform. Just a little too much of Big Brother.

If you don’t have blood popping out of your eyes yet, here’s the real kicker: these rules only apply to the Internet (p.47). Traditional media (i.e. newspapers, television, radio, etc) is exempted. Why is something in one media form okay that is not okay in another?

Blog by nature are opinion pieces. Few bloggers would consider themselves “journalists,” so why the move for the FTC to poke their noses into editorial comments? I agree that a blogger should disclose compensation if there is any possibility that the post may have been affected). But that’s because it’s the moral thing to do, not because it’s a government regulation.

I’ve heard a lot of theories in the past few days about why this is happening. Some people have said it’s a way for the government to collect a little extra tax revenue. I doubt it. There aren’t many bloggers earning enough to make it worth the government’s time.

I do wonder this, however. President Obama’s regulatory advisor, Cass Sunstein, is a proponent of an idea he calls “nudging.” Which suggests that you can’t go change policy in big sweeps. Rather, you nudge in the direction you want things to move in, until the policy is changed.

I think this is a nudge. A bill proposed in August would give President Obama control over the Internet in case of some vaguely defined “emergency.” I hate to go all conspiracy theorist on everyone, but I can’t help but wonder if this is a nudge, a test to see whether this narrow aspect of the “new media” can be controlled.

I admit I may be wrong, but it does remain a test of the government’s ability to regulate the Internet. This new guide is narrowly focused in its targets, and there is some rationale for it. But if it’s successful, look for more regulations soon.

Remember the Republicans’ lame arguments in defense of the Patriot Act? That if we aren’t doing anything wrong, we don’t have a reason to object. Well I’m not doing anything wrong. And I object.