My Thoughts on the FTC Disclosure Rules and Bloggers

Ok fine, it's an institution's attempt at being valid in a changing world. Disclosure and the FTC rulings are no big deal taken at face value. I could just stop here. But Chris you know that's not like me so here goes.

Let's look at other relationships that are not disclosed but surely impact that way the world works.

1) Does Tiger Woods really drive a Buick or use Accenture Consulting? Yet airport signs and TV ads abound. What would that be called in the social media world? (Disclosure needed or not?)

2) White House correspondents shape their stories on whether the Administration (not just this one any one) will continue to grant access to them, especially access that is a tad better than the other correspondent sitting next the them in the press room. (Disclosure needed or not?)

3) What if a consultant is not writing about an issue, but merely sharing links to topics in the industry area in which they have a client. (Disclosure needed or not?)

4) Disclosure is I suspect a good thing up until it taints the very nature of making a living. If the typical reaction to disclosure is to the doubt the words of the discloser this is a bad thing. It's a cultural thing in our society that I'd be interested to learn more about. What is the typical reaction when people read, "Hey I got this product or I get paid to give counsel to x company who participates in the industry I'm writing about." Has this predisposition to doubt caused the decline of trust in institutions like government and corporations? Are we now extending this predisposition to individuals commenting online?

5) My point is this, our democracy has been undercut by a minority of cheating politicians who have been granted power by their constituencies. Their actions have caused our government to enact sweeping, almost ridiculous "ethics" rules that go so far as to require disclosure of pricey lunches. My fear is we will all be viewed in the same manner as politicians and is that a good thing?

Hi Albert- let me try to answer one or two of your questions.
1) Tiger Woods- under the FTC guidelines, Tiger Woods would have to drive a Buick at least some of the time and have a basis from first hand experience to endorse it. Likewise with Accenture consulting. This effects celebrity endorsements in particular, and you'll start to see more and more "Not an actor" or "paid actor" in ads after the ruling goes into affect on December 1.
2) White House- this is news, not a strictly commercial relationship- the news agency isn't paying the White House for access- friendship, relationships, etc. don't require disclosure, but any quid pro quo does. We've acquiesced to the fact that Journalists ride Air Force One, I assume, at the Country's expense and not that of the individual news channels, but who knows? Maybe they get a bill after each trip- I have no idea. But again, I don't think anyone gives a President a free ride just because they got to ride Air Force One and got a beer, do you?
3) Sharing links on topics in an industry where you have clients is not enough to trigger the regulations covering testimonials and endorsements- you should read them- they aren't all that deadly, and if you hve any more questions, please ask and I'll be happy to help.
4) All the FTC is asking is that people put their quid pro quo relationships in the open, and let people know when you received something for free and when you paid for it yourself, if you are endorsing it or panning it for that matter. What will be interesting to see is if this crosses over into things like the conference industry, and whether speakers who pay a company to present t their conference will have to disclose that.
In the end, I think disclosure is a good thing and lets consumers know there's business involved- and I think Chris is a great example of how disclosure actually builds more trust than adds distrust into the mix.

I'd certainly rather know if my doctor is prescribing X meds because the company set him and his family to the Bahamas all expenses paid for a week- in fact, that's why the pharma industry is now regulated on what they can do in this regards so the formerly routine wining and dining of physicians has come to a halt. Shouldn't this be true for everyone?

I appreciate your thoughts and agree for the most part. There is a fine line between common sense and overregulation. Two issues

1) just because I may get paid doesn't taint my opinion. I think our culture is predisposed to believe that. It's something that will change only after transparency is an accepted practice over generations

2) Wait you are kidding me right about the White House thing? The Washington press corps has missed so many stories in the passed decade or more, Enron, WMD, Causes for the bank bail out. No I don't buy that one, it's about networking and who has got access to the first interview, to the new angle from the power players.

Are you with the FTC?

I agree with you, Chris, but I have a few other concerns that you didn't really hit on.

As far as ethical behavior, you've pretty much wrote on that before and the community went a bit pitchforky forming two groups of good-faith bloggers and results-oriented advertisers against each other. (here)

That said, I find it a bit ignorant of the FTC to issue considerably "harsh" mandates for essentially editorial matters on the Web. I hope they know, American bloggers and advertisers aren't the only ones gaming the system and it opens up the opportunity for such advertisers to advertise through ulterior means, pay-for-playing with international bloggers and their ad firms.

But, again, as always, it comes down to doing the right thing. The FTC is trying to communicate to businesses and would-be sole proprietors out there, do the right thing or be slammed for it. It gives bloggers in general a bit more of credibility, like TV. Television ads are heavily regulated -- introducing those "results not typical" safe harbor rules.

It's /not/ just limited to bloggers, but they are impacted. This also impacts any Web sites who provide customer testimonials ... they must also provide data on the actual results, nullifying the previous "results not typical" safe harbor.

This impacts advertising and marketing as a whole, not only bloggers. The 81 pages of regulatory-ese is worth the read this time around. (PDF: Get ready to see what your tax dollars go to author.)

The guidelines are very loose and are aimed for catching the big offenders. It shall be interesting to see how the first case becomes enforced. I could easily consider the 1st Amendment as a solid defense if I was a defense attorney for a blogger.

Thanks for sharing your thoughts on this, Chris. I just wanted to get a few of mine off my chest, too. :-)

~Joe

I think disclosure is the right way to go. How hard is it to put at the bottom of a post "Nike provided the shoes"? Not hard at all.

I find it interesting that so many people are having issues with it. This seems to me to be a simple ethics test.

What am I missing here?

"Nike provided the shoes" takes up 23 characters (16%) of a tweet.

What you're missing is that they're not applying these same rules to traditional media. Say I'm a wine blogger. I need to disclose when I'm given a wine to review vs having bought it. But if I'm the Wine Spectator or a wine and food columnist at a magazine or a paper, I don't. It's insulting to implicitly say "well, we can't trust bloggers so we need explicit disclosure but we can trust regular media."

FYI see this link http://fermentation.typepad.com/fermentation/20... (not mine) for why these rules are asymmetrically unfair. It's not that disclosure is a bad idea, it's that social media is being held to a higher standard than if the person was writing in traditional media.

The FTC is just the deflection. Ultimately, it is all about IRS taxation. A $100 bottle of wine for free is still $100 worth of income, cash or not. And, the IRS gets hit twice as the wine company writes the "gift" off as a marketing expense. Disclose and dispose, no income. Keep and drink, income.

When I used to work at the Dayton Daily News, publishers, studios, etc sent book, DVDs, software, etc all the time unsolicited to the newspaper for review. No journalist kept that stuff as personal property. And the DDN was/is a small paper compared to the NYTimes, WaPo, etc. I can't imagine those papers don't have a similar policy. The ethics are straightforward and fairly simple. There seems to be some implication here that "traditional media" journalists keep the stuff and profit from it. Far from the truth. (Anyone at the NY Times, WaPo want to weigh in here...)

Traditional media is not being tied to the new rules because they have policies in place already and published penalties for behaving badly. Social media is now being held to a higher standard because some high-profile bloggers (or wannabes) didn't have the brains to figure out that freebies aren't really free. They failed to police themselves and just handed leverage over to the FTC. Same things happened with restaurant wait staff and tips.

Follow the dollar, people, follow the dollar. This is not about honesty, integrity, protecting the consumer and all that other crap. It's about money. And while we're arguing all the other stuff, the IRS is probably slowly revising the tax code because they have a singular focus; money.

I'm not implying the traditional media keep the gifts.. I'm *saying* that they aren't bound by the same rules of disclosure at either the journalist or newspaper/TV/etc level. The entire reasoning behind the FTC's ruling is, ostensibly, that a gift of a bottle of wine (in my example above) would influence the blogger's review but not the wine columnists. That's insulting.

Disclosure is a good thing, yes.

But my concern is that the Guidelines go too far. And they leave many situations as gray areas.

Take for instance Twitter -- it is going to be very hard for people to disclose all their relationships in a tweet.

And like Albert says below, "3) What if a consultant is not writing about an issue, but merely sharing links to topics in the industry area in which they have a client. (Disclosure needed or not?)"

And what about other relationships? Getting paid to review something is one thing that is crystal clear. But there are many many bloggers who engage in arrangements that they don't get paid for, but which bring them value. What about bartering arrangements that we KNOW go on all the time -- how many will disclose those? What if you're invited to speak somewhere and you don't get paid, but you are getting valuable marketing visibility -- are all the blogger speakers going to "disclose" the value of their marketing exposure when they write on their blog about where they will be speaking?

And what about those "scratch your back, scratch mine" situations among friends that we know go on? How many will disclose those?

It's just a minefield of uncertainty....

The ruling doesn't bother me. I'm all for disclosure. My concern is if well-intentioned bloggers don't disclose enough? Who makes the decision on how much to disclose and how big to make the letters? Like you, I do the occasional sponsored post. Is having a sign reading "This post is sponsored by...." good enough or are we going to have to say, "This is a sponsored post. I received $500 from XYZ to write this post.In addition, my former employer paid for this laptop and I write off my Internet access since I work from home."

I dig transparency and I've always felt bloggers (or anyone) should disclose when they're being paid to blog about a product or service, but I wonder about who is going to be the first to have an example made out of him for not doing it the "right" way.

I'm with you Chris, in that I agree that stuff like this should be disclosed, and like you, I probably over do it! However, I am nervous that somebody, somewhere is going to take this whole thing too far and start either prosecuting bloggers for a simple omission, or worse, for not offering "full" disclosure. For example, as well as being a blogger, I'm a motoring journalist. Do I have to make note of the fact that as well as lending me a car, the manufacturer filled it with gas, paid the airport car park ticket and then gave me a key fob as part of the press pack?

I think as long as the authorities and we as writers, apply common sense, then all will be well. Let's hope that's the case.

I thought about this a lot. At first I thought I would explain every sentence, link, etc. over and over and over...like preparing for an audit. Then I decided that I have been disclosing in one way or another for so long...and will carry on as usual. I might even manage to find some humorous ways of doing my disclosures. :-)

I think the more upfront you are the less likely there are to be "Misunderstandings" .. Product Placement and Pay for Play have become more socially acceptable forms of advertising, just watch Oprah!

I agree with the ruling.

I have to agree with McMedia on this one. Our firm checks, double checks, documents, and has in writing every single testimony that we post. So should most.
There is absolutely nothing wrong with testimonies and/or endorsements. We do it for other friends often and they do us. This is America. It is protected in the 1st Amernment. It is called "free speech". In some countries such as Iran, N. Korea, Libya etc. it is unnallowed. For those against it, these are ideal contries in which to live where censorship rules (except for the "more moral" i.e. those with the most cash".

I have been just a little distressed over it all myself as well, as many thing arent really made very clear about this whole thing. Now, Ive never given testimonials, but have umpteen sites and affiliate products links etc, many things my own opinion and choice of things Im not even an affiliate for, and many I am..I posted a disclaimer on ea that I hope covers it all. I was however wondering about the twitter thing, do we post in our profiles? make a tweet? I dont affliate market anymore, except for myself and a program that Im taking part in. I suppose its up to us to either remove old links off of sites or take responsibility for them ? how long ago? ohh my..thatd be a task. What about sub-affiliates? could we be responsible for them in any way? all many questions Ive had..although dont get me wrong, I think its a great idea, & a big help for us to get rid of some real vermin online giving all of us a bad wrap.. allowing us to build a better future in the long run!

I listened to a webinar on this from a law firm a couple of weeks ago and it sounded pretty sensible. My gut feeling is the FTC is not going to come out of the gate prosecuting individual bloggers for oversights, but we'll see. The incongruous thing about all this is that the ruling deals with openness in social media, yet it is delivered in the standard legalese that is open to endless interpretation. Wouldn't it be great if they could just tell us simply why they did it and what it means?

Hi David- to be honest, if you read the Guidelines and examples, they are pretty straightforward as legal stuff goes, and much better than say, most of the ADA regulations- try parsing what "effective communication" means for people who are native spanish speakers and deaf for example, and you only have an interpreter that speaks American Sign Language....
But like every rule, guideline or regulation, we'll know more over time as the regs meet the real world. And as in every case, the most egregious violators get caught up first, and over time, over years, the finer line distinctions get made. The closer you push it to the line, the more risk you run, as with anything else.

I really do urge you all to read the actual Guidelnes and examples- it's not too painful, I promise. Granted, I am a law school grad and have passed the bar in PA, but seriously, as far as legalese goes, these Guidelines and examples are pretty reasonable.

Thanks for the info, Whitney. Much appreciated. I realize that all I know about the new guidelines comes from that webinar. Thanks for sharing your informed opinion on my comment and others'.

Disclosure is a good thing and I think if you want your reader to get the right picture this needs to be done. I agree with Chris that this makes me think about thinks that might get put into place later on in the future but for right now this ruling it not to nuts. Also, alot of bloggers already disclose. My wife and I do on our blog.

It's an interesting ruling. We'll see how this all shakes out. I'm sure it's gonna take a few court cases before people feel like the FTC has a fair grasp on the situation.

Overall, I think it's a good idea (if I'm reading the ruling correctly), because it goes past the internet faux-pas of not saying "whatever company gave me this item for free in exchange for me talking about it" and goes into actually undisclosed business relationships similar to Payola back in the day.

While I've always questioned whether you could (or should) try to legislate morality, we do in most countries, and usually because behaviors have needed correcting. The devil will be in the details (and how it's enforced), but I agree with Chris that those who are doing things the right way already shouldn't have to worry. I'm reminded of what my father always said before I went out on a date (right after he told me, "Remember who you are and what you represent."): "Avoid the appearance of evil or impropriety." In that context, he was saying, don't come out from a dark part of the woods with your boyfriend and grass and leaves all over your clothes if you don't want people to speculate about what your were doing. People are quick to assume the worst about our most innocent behaviors if we aren't really careful. Thanks, Dad (he's 91 and still wise)--your advice is still right on...

Like you, I believe in disclosure to develop trust and ensure transparency. In my short time in the blogosphere I've been given two books to review, a Sony car stereo that I got to keep and went on to my first blogger event. In writing about all of these experiences I made sure to disclose openly and honestly. I even wrote a review of Trust Agents for both of my blogs and made sure to disclose that I paid for the book with my own money. Is that going to far? I don't think so, it is important for me that my readers know this stuff.

Maybe it is the twelve years of experience I have back when I had a real job in corporate and consumer finance, especially consumer, where multiple disclosure of the same issue was required to satisfy the rules of different governmental agencies even though they basically said the exact same thing if you read them.

The real question for the FTC is a matter of enforcement. Are they doing this to remain relevant? Keep the rules in check for a rapidly changing market? Enforcement will be difficult, but I have no doubt that some of the more blatant offenders are probably already on the FTC's watchlist and will be the first to feel the wrath of these new rules in order to serve notice that they are paying attention.

My only problem with the new rules is that there are so many examples being thrown around (in movie product placements, for example) that aren't necessarily subject to disclosure. And what about celebrity endorsements, I loved Albert's example of Tiger Woods driving a Buick. I have a friend that lives near him in Florida and has seen him in his Lambo, so I know that those Buick ads are nonsense, yet the dramatization wants you to believe that he just loves his Enclave.

Anyway, I'm not much a review guy on my blog, but when I do come across something that feels like a good fit, you can be sure that I'm going to tell the full story. I've worked too hard to develop the relationships with the people that visit my blog regularly to go and waste my social capital like that.

For me, disclosure has always been kind of a no-brainer - but that might be because I come from a traditional media background and it's always had to be a consideration for me.

I don't see this ruling as a bad thing - it may make some people clean up their act a bit and I can see how it's an attempt to make blogging a more credible medium. I'll be curious to see how they plan to enforce it, given that there are millions and millions of blogs in the U.S.

A trend I've noticed lately is bloggers who are what I'd call "undisclosing" stuff - the minute they mention a company of any sort in their blog, they feel the need to put some sort of disclaimer on the post like "I'm not being paid by company X to say nice things about them, honest!". It could be a reaction to some flack they've gotten in the past from people for perceived lack of transparency, or it could just be paranoia.

But how far do we need to go? If I write a post about a tool, product or service on my personal blog just because I like it, am I going to have to make sure I've got a disclaimer of some sort? Will simply posting a page with said disclaimer be enough to satisfy people? Perhaps that's the way it should go, if transparency is going to be the priority.

It will be interesting to see if the CRTC here in Canada follows suit, and how quickly.

Chris- you do an excellent job of disclosure all the way around, and are a great role model for this- I notice how well you disclose client relationships even in your twitter stream, so I have no doubt that the FTC rules mean any more than business as usual for you.
The FTC's getting involved in the internet, which in inherently a global communication service, not one that you can isolate country by country very well, is going to be interesting to watch. On one hand, I'm thrilled that they are officially recognizing blogging, podcasting, tweeting and more as valuable communication spaces for commercial messages worth regulating- it means we're no longer just a bunch of hobbyists on steroids, but real business people, further opening up the flood gates for people to make a living doing what we do every day. On the other hand, the web is almost the ultimate democratic platform, where everyone has their say and control left the station a long time ago, so how reasonable/feasible will enforcement become?
If it does take the wind out of the sails of some of the spam, I will be grateful. Do I believe it will probably just move overseas? You bet.

Chris, thanks so much for sharing that link to Whitney's post. That clears up so much for me, especially the distinction she made that these aren't "new" rules per se, that they just "extend to cover new media sources". In general, I believe that most laws have gray areas, so that's just the nature of the beast. Whitney gave some great examples to clear up some of these. Either way, while I'm just a small-time blogger myself, I'm also a blog reader and a social media consumer who is glad to see this ruling put in place. I look forward to seeing some unexpected disclosures coming to light. I'm sure the social media community will quickly come up with some nicely palatable disclosure language that will become second nature in no time and will only enhance reader's confidence in it.

You're all "happy and glad" about it now, but just wait until even your over-the-top disclosures are not enough and the FTC comes knocking on your Trust Agent door. Then you won't be so kiss arse on this issue.

That's me. A kiss-arse. : )

It's okay, Chris is protected by the 1st Amendment in the United States Constitution. As a reminder, in case the FTC forgot:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(Emphasis added)

I would have to say that Chris provides significantly more disclosure than the guidelines mandate and meet and exceed audience expectations. Just my opinion, of course. :)

~Joe

I agree with your thoughts from a high level. Disclosure is upright, admirable and necessary in order to develop and nurture trust with consumers. However, my main concerns expand beyond what is "right" to consider what is fair and practical. In sum, I am concerned about enforcement and the overall trend toward regulating all businesses in an industry (especially tiny ones) in the same way.

How will these guides be enforced in a neutral fashion? Did the FTC enact the most narrowly tailored options? (I don't think so.) Did they hear from all different types of bloggers before promulgating the rules? (Don't think so again.) While it may not be their fault for not hearing from all affected parties, the fact is that the tiny business bloggers were probably not consulted. I think there should be an exemption, or at least the ability to request an exemption, for certain similarly situated bloggers whose proportionate connection to consumers is teensy. There's no reason to enforce these rules as written against a certain class of bloggers -- the vast majority in fact.

Even though the premise behind the new rules is good, and people will get used to them, I feel the rules are too far reaching and will be nearly impossible to enforce in a fair and neutral manner by a regulator that has not begun to understand how small (and I mean teensy small) bloggers operate.

I agree with David B. Thomas (below) that the rules, which clearly affect laypersons in new ways, are not written for your average everyday person to understand. For anyone interested, I posted my analysis and commentary on the rules at my blog right after they were issued. I am an attorney who works with very small business owners so I tried my best to analyze and summarize things using words people on "main street" can actually understand and apply to their particular circumstances.

This is a topic that has been bothering me lately. So, I'll try to tone down my comments.

Regardless of the FTC and all of these rules, it still comes down to being honest. People aren't stupid. Much of this full disclosure stuff is a bunch of smoke and mirrors where bloggers want us to THINK they are being honest or being a a good guy.

Albert's comments are excellent. He makes this point clear - regardless of what the FTC is trying to do, we already know. That's the point I was trying to make in my own blog last week on this very topic. My point was actions speak louder than words.

What does that mean with respect to blogs, where we are mostly reading comments? It means how you say it matters even more than what you say. The disclosure itself means something. You could even call this "over-disclosure." And over-disclosure is really a veiled advertisement. Nope, no laws against that, it's just not being totally upfront with your community.

The thing is, people aren't honest. Plenty of people aren't honest. Just pick any given day in your profession and you'll find dishonest folks. I know I do.

While I hope its not a lot, yes, there are definitely some who aren't honest in any profession. Most of us see that, as we do the ones who are clearly on the up and up.

It's that middle ground that seems to be the slippery slope - where one may even be in compliance with the rules, but not the spirit of the community. That's what I was getting at.

Hopefully these new FTC rules will wake some people up. For the rest of us, it acknowledges the power that bloggers are wielding these days, and that's certainly good for the community.

Was this ruled only for blogs?

Nope- this covers endorsements and testimonials in all advertising. The big deal is that blogs and online testimonials and endorsements are included for the first time in the Guidelines. The original guidelines were put in place back in 1980; these are revisions, initially released back in November of 2008 and opened for public comment; they become final (and enforceable) on December 1, 2009.

Wrong.

Certainly endorsements and testimonials are covered in *certain aspects* of other industries (mostly diet pills and celeb endorsement deals).

Bloggers and social media users are *particularly* singled out, and Old Media is left to do as they will.

A newspaper man can go to a movie for free, and not disclose. That's fine.

If a blogger does the same, he can go through a painful investigation with the FTC, as can the advertiser.

I can see that it will depend on how the term "advertising message" is interpreted; the testimonial or endorsement part certainly would cover both.

Moreover, the most important part of the Guidelines is as follows:

The Guides in this part represent administrative interpretations of laws enforced by the Federal Trade Commission for the guidance of the public in conducting its affairs in conformity with legal requirements. Specifically, the Guides address the application of Section 5 of the FTC Act (15 U.S.C. 45) to the use of endorsements and testimonials in advertising. The Guides provide the basis for voluntary compliance with the law by advertisers and endorsers. Practices
inconsistent with these Guides may result in corrective action by the Commission under Section 5 if, after investigation, the Commission has reason to believe that the practices fall within the scope of conduct declared unlawful by the statute.

In other words, the guidelines provide a basis for voluntary compliance with the law, by advertisers and endorsers- its whole purpose is to clarify the legal stance of endorsements and testimonials in advertising, and includes those on the web.

So, if it's not an advertising message in any way shape and form, it may not be covered. I can see where this could be interpreted as a safe harbor for traditional media. But in the examples given regarding a blogger who reviews video games, I have a hard time seeing how that is substantially different from when David Pogue reviews gear in the New York Times.

We'll just have to wait and see what the FTC starts to do to enforce these Guidelines, as is always the case- the individual cases flesh out the real boundaries and contours of the law.

Again, that's an incorrect interpretation of the *guidelines.*
*Part* of the purpose of the *guidelines* is to define *specifically* how
bloggers define disclosure of financial relationships that could be
nebulously construed as endorsements.

Do you do consultant work for one of your clients then write about something
from your industry in a comment on a blog? If you don't properly disclose,
and that comment shows up on Twitter or Facebook or some other place where
your name and face appear in a lifestream, you could be guilty of improper
disclosure, since the money you receive could (and probably
does) influence your worldview in the opinions you express.

Then, you and your employer could be held liable.

The FTC needs to stay out of my speech. This isn't right.

No, the full guidelines are posted on the FTC.GOV Web site. In the 81 pages of regulatory drivel, it elaborates this would impact just about any content on the Web that has been paid/compensated for in some way. So, it would also include testimonials found on many Websites.

PDF: http://www.ftc.gov/os/2009/10/091005endorsement...

The problem isn't with the FTC coming into the space (which I wholeheartedly agree with), it's with (and continues to be) the false advertisers. This could be bloggers, marketers, article writers, tweeters - whatever. If you tell me something is great and you haven't even tried it, but were paid for that opinion, I'll be pissed. Royally.

I've seen it happen, and if the FTC coming in helps to clean up the shillers, I'm all for that.

I wrote about my take on it a while back:

http://dannybrown.me/2009/04/22/why-social-medi...

It's not a crackdown on bloggers per se, more the ones that work with companies and offer a view that's nothing more than an outright lie.

Incorrect.

Bloggers, according to the guidelines, can be fined. Rich Cleland has been spinning it in the press as if they cannot, but read the guidelines for yourself, and you'll see otherwise.

Bloggers and social media users (Twitter, Facebook, etc) that are employed and use social media to promote their work can be held liable as well, if the FTC isn't particularly satisfied with the style disclosure they use.

Exactly, and that's what I said. It's not a crackdown on bloggers, it's a crackdown on false advertising. If a blogger lies via a sponsored post then they should be held accountable just like anyone else.

You're mistaken.
You should read the guidelines and the proposed changes, as well as much of
the analysis over at SiliconANGLE.

Mark, I have read the guidelines as it affects my US clients, thanks.

I hafta wonder, then, if you've considered all the ramifications of these
regulations.
Given how nebulously these guidelines have been written (they never *once*
define terms within the guidelines), and the fact that guidelines haven't
been updated in thirty years, you hafta at least admit the fact that in 30
years, let alone one or two, the lattitude that the FTC has granted
themselves here can be widely interpreted to start regulating a lot of
things with this set of guidelines.

This is government creep at it's finest. Sure, if you believe every word
Rich Cleland has uttered the last several weeks, they sound pretty
innocuous. Truth is, though, most of what Rich says is in direct
contradiction to what's actually in the guidelines.

Um, there's a whole section, 255, that is definitions. Did you read the things at all?

Wow, could you be more of an jerk?
Before you ask a blatantly stupid question like that, perhaps you should go
through and do a Google search on my name. Go ahead. I can wait.

I've been covering these FTC guidelines for months and months, before anyone
in the PR, marketing, tech or blogging world picked up on it, let alone the
mainstream press. I've been on numerous podcasts, guest posted, and been
quoted in the press dozens of times on this. I've read this document more
times than I care to admit, and I find your question more than a little
insulting.

Here's a little test for you - find me the word "blogger" defined in section
255 (not section 255.1 or any other subsection - section 255 where the
definitions are).

You won't find it.

The word blog is used once or twice in the examples, but never is it defined
what the FTC considers a blog. Surely, if you read Chris Brogan's site,
you're well aware of the liberal definition of the word blog in today's day
and age. Never once does the FTC document clearly define what social media
users they're targeting, and though the examples try to enumerate that, the
press statements from the FTC (Rich Cleland is who I'm referring to) have
made it clear that they're not sure they have a handle on it and wish to
create an environment of FUD so that everyone and their dog will hafta worry
about this.

This is the definition of Chilling Effect. Chilling effect is even
mentioned by name in the FTC documents (see: "Analysis of Comments
Concerning What Communications Should Be
Considered “Endorsements” Under § Section 255.0 of the Guides").
Unfortunately, the FTC chose to ignore such analysis and dip their little
paws into First Amendment regulation.

Mark my words - the first time this goes to court because some Twitter user
didn't say the right thing the right way, these guidelines will see the need
for revision. No judge with any respect for the constitution will allow
this.

Calling someone a jerk just because they asked you a simple question? Classy...

Well, ask a stupid question, get a stupid answer. Way to revive a dead
thread.

Chris,

It's great that you disclose your commercial links, however there is a big difference between you doing it because you are responsible, and the FTC forcing it. It's very important that journalists understand the difference.

To quote from a comment I attempted to post elsewhere:

"This is great news, if we don't want free speech or individual rights.

It has come to a point where few people understand the line between freedom and protection, on the one hand, and government overstepping its bounds and violating our rights, on the other. Without this understanding, free speech is doomed and so are the rest of our rights.

If someone makes a statement in an online review regarding a product and fails to disclose payment from a third party it does not violate my rights, because I am free to make up my mind either way based on the information that *is* provided. Failing to provide information is not a falsehood, nor does it necessarily constitute fraud, which is the only legitimate reason to investigate it. I can simply *not accept it*, if I choose.

If I want to ask the blogger about their relation to the companies involved I can do that, and they can either tell the truth, not answer, or answer falsely which would be fraud and could be prosecuted.

It is not a journalist's *duty to provide information* that I need to make a decision simply because they choose to blog on a topic; to impose this sort of positive obligation on media outlets is to make them a veritable slave to others. If the government steps over this line and forces media to provide information, it is government that has committed a transgression, not the blogger. In such a case, government has used force against a citizen who was not violating anyone's rights. That is the definition of the violation of freedom and of individual rights: unprovoked use of force.

The line in the sand that is becoming obscured is that individuals should be free to say as little or as much as they wish, provide they do not make fraudulent claims. Otherwise, government should have no say and take no action whatsoever. Once this line is crossed, there is literally no significant principle standing in the way of government with regard to written content. Anything the public does not like, and tells government they should have, can be forced out of us.

What if regulators think that political writers should be forced to disclose their membership to past political organizations, because the public "needs" that information to make an informed decision? What if regulators think scientific publications should be forced to provide alternative theories, because the public "needs" all the facts to make a decision? What if regulators decide that companies need to forced to provide information against the products they are marketing, so that we can make a "balanced" decision. Oh, wait, they already have to do that ;)

Please, learn about individual rights, free speech, and fight for it. Free speech in electronic media is at stake."

See:
Ayn Rand's Capitalism: The Unknown Ideal
http://www.aynrand.org/site/PageServer?pagename...

Jeff Montgomery
http://funwithgravity.blogspot.com/

Wait - why would requiring disclosure be an impact on free speech. Free speech doesn't guarantee the opportunity to subvert important details. In fact, there are plenty of other laws that tell us how to speak: slander and libel come right to mind.

Just being sure I get where you're going there.

Free speech actually does guarantee us the opportunity to subvert important details.

See any presidential debate.

For that matter, define important. What's important should be defined by the speaker (or content creator), not the government, and ultimately by the audience.

Audiences in social media tech typically demand transparency on sponsorship relations, and speakers and content creators who don't disclose should be free to blow their reputation.

Chris,

Good question.

The reason is that disclosure consists of forcing information out of people, whereas laws against libel and fraud cover statements that have already been made.

With fraud and libel, laws do not compel a specific action; the action has already has been taken and is being questioned. Unless a false statement is made, the government adopts a hands-off stance. The crucial difference is between *compelling* and reacting. That is the essence of freedom; the right to act until a specific transgression has taken place against someone else, in which case the government steps in.

To use an example from criminal law (admittedly not an exact parallel), it would be like the difference between prosecuting a murder after the fact, and requiring us to notify the authorities when we go shopping, because we might commit murder. We wouldn't tolerate such disclosure rules regarding personal whereabouts, yet we readily accept it with regard to mere product endorsements.

I'll offer an insightful quote by Ayn Rand in this connection (the first paragraph in the link): http://aynrandlexicon.com/lexicon/free_speech.html. In it, she says "A 'right' does not include the material implementation of that right by other men; it includes only the freedom to earn that implementation by one’s own effort." (this is what the Bill of Rights means when it mentions "the pursuit of happiness"; we have the right to pursue it, but not have it provided for us). That's exactly the issue here: the FTC's rule involves coercing the implementation of an alleged "right to know commercial connections"; it requires that journalists provide the 'material implementation' by supplying information rather than keeping silent, if that is their choice. However, it does not in any way constitute fraud to *not* disclose your influences. We are still able to do our own research and draw our own conclusion, so a reviewer not disclosing connections does not violate our rights in any fashion. If we consider it important enough, we can simply disregard further reviews by that person.

Hope this helps.

Jeff

Is the rampant abuse of "freedom of speech" by slick and sleazy - and oftentimes very sophisticated - hype-artists to go on ad absurdum?

As Chris Brogan pointed out in reply to a previous comment, not all people are honest. The reality is that the dishonest ones can and are spoiling the fabric of trust that is a basis of commercial communication and interaction among humans.

The anonymity, that the internet provides, requires re-considering the amending the rules (including the first amendment) because reality has changed.
Laws and regulations participate in a dialogue with norms.

I therefore applaud the FTC for contributing to the required change in norms, to accommodate the change in reality.

I don't regard the "fabric of trust" to be of higher value than our freedom. We should not tolerate selling out our freedom to protect mere *product reviews*.

If someone makes a false statement, they can be prosecuted. Aside from that, restrictions constitute a violation of the *principle* of free speech and of individual rights, and this one seemingly innocuous prohibition is in fact one of many small steps by which our freedom will be lost in more important ways.

Jeff Montgomery
http://funwithgravity.blogspot.com

I agree with you and I cringe anytime the government tries to legislate ethics. Sure, it doesn't affect me much because I already consider myself an honest guy, but frankly it is one more thing to worry about in an already jam packed day.

Are we trying to say that buyers shouldn't do their due diligence?

I have no issues with transparency by way of full disclosure. I think it's crappy that the FTC has to create a ruling in order to make that happen but I'm not going to argue against it. One of the major problems with the Interwebs is a total lack of trust. Something Chris and Julien are well aware of. ;) What's wrong with holding the people that write product reviews or endorse a company to a standard of trust? Like I said, it's a shame the FTC has to make it a legal issue when this sort of thing should just be the norm. The Cleavers and the Internet totally missed each other though and we live in an age of falsehood, misdirection, and a lack of authenticity. I fully support these standards and I hope it changes the landscape of this "Wild West" mentality we're all familiar with. This isn't Socialism people. This is structure. It's missing and we need it. Will it step on the toes of a lot of money makers on the web? God I hope so.

Chris,

I agree with your position and it would be mine as well to disclose any significant client relationship or paid reason to post.

I also think Albert Maruggi has some brilliant examples of similar circumstances in the offline world that are neither regulated or subject to criticism.

This proposed legislation is misguided by the government and is similar to other ways that regulators and politicians waste their time and our resources. Investigating the steroid situation in MLB comes to mind.

There are much bigger fish to fry out there and that is where the regulators should be focusing their efforts. The saying has "buyer beware" in the world of commerce for a long time and I see no reason why that same approach can't be taken on the internet.

Just set your expectations low, read everything with a skeptical eye and use common sense. That is better than a new set of laws and reasons for lawyers to sue others.

Bill

Psycho-manipulation by overzealous marketers has become too sophisticated for being dealt with by "buyer beware" mentality.

The unfortunate result is that we expend precious energy in being overly suspicious of everything.

This regulation - in and of itself - is a sign of [albeit belated] normative social vitality. Had it not been issued by the FTC, with it's reputation for shooting first and asking questions later, I doubt it would have raised such a ruckus.

I like what you said.

I think its a good move, with so much going on on the net there needs to be some type of standard or it will just turn into one massive spam take your money quest and that is it. If you are a honest marketer and are serious about making money and or promoting products then you should have no issue with this what so ever.

Exactly

I agree. Several months ago I wrote an article about a software vendor. Between the time I wrote it and it was actually printed I had joined their advisory board. A reader of the article got very upset when he discovered the relationship. I was able to explain the lag time and sequence of events, but not disclosing does put one in an awkward position.

Personally, I'm bothered by the amount of hulabaloo the FTC ruling is kicking up. Like you said Chris, it's just a matter of saying "I was sent on this trip" "I was provided this item by the company for my review".

I've always adhered to traditional media standards wrt reviews. Yes, I receive product. I do not feel obligated to review it, report on it or sugar coat my thoughts simply because the product was provided to me. That's where, from what I can see, a lot of the bloggers are up in arms about - they seem to feel somewhat obligated to provide a positive review because they were given a product.

In addition, a lot of the FTC document (the part that I read... I didn't get all the way through the 81 pages) dealt with the *marketers* who were providing the product and less with the bloggers who were writing the product reviews etc. Maybe I just didn't get in deep enough through the document.

Seems as though parts of the community is up in arms about something that's really not that big a deal.

Most users can sense transparency. No need to legislate it. Puts more emphasis on trust agents.

Helpful post, Chris
I'm fully supportive of full disclosure. It makes things so much easier all the way around. I wish that this would be a matter of common sense and business integrity, rather than having to be a legislated issue, with yet more regulation. That's the part I have an issue with. Let's not let a few bad (or misguided) apples spoil the whole bunch. If we're honest and straightforward it elevates us all.

Yup yup yup. The FTC ruling means nothing to me because it doesn't change the way I have been doing it all along.

I've got a problem with it. I've got a major problem with it.

Stop me if you've heard this one:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The FTC, acting on behalf of and on the authority of Congress, is creating what they're calling laws (even though they're really guidelines) that abridge the rights to free speech by individuals *and* the press.

Certainly disclosure is a good thing. I do it where it's practical.

These guidelines are overtly vague and have a chilling effect on online speech. I'm against them.

I'm sure you knew that already. :)

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I don't fully like it. Granted I don't or haven't started blogging for money, but it seems more like something Eric Schmidt pushed for than anything the blogosphere really needs. They're having a tough time with bought links at Google. Now, they're officially worthless. Just seems like too much lobbyist-induced big-government breathing down our necks.

I've seen a lot of people talk about the recent FTC disclosure guidelines who seem to think that sitewide disclosure policies are an act of "transparency". I'm not convinced after reading through many of the recent FTC cases (i.e. the Operation ShortChange cases) that a sitewide disclosure policy is going to be good enough at all for them.

Any thoughts on that?

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I am with you that disclosing is the way to go. It takes maybe 2 seconds to add in a line when you're posting and it lets your readers know there is a bias there. Does that discloser always change your reader's minds about your post? No, but it’s good to get it out on the table anyway.

Chris,

This morning's Orange County Register (same O.C. where you spoke at Chapman University a couple of weeks ago - great talk BTW) has an editorial on this ruling - http://bit.ly/3fnvPE.

One point that I particularly agree with is that "Regulating Twitter, Facebook and the blogosphere is like regulating word-of-mouth advertising." Of course they go on to note "Good luck trying to track down every blogger violating these new rules. Fortunately it would take a regulatory force the size of China's army to pinpoint every offender."

Another interesting point is that print journalists will not be subject to the same rules. Hmmm, maybe you're right about future encroachment on the internet. The Register editorial makes that point as well.

Full disclosure: The Register editorial board slants heavily toward a libertarian viewpoint. Not saying that it's good or bad, just trying to help out other readers.

Keep up the good work Chris.

I don't have a problem with disclosure. I do have a problem with the government getting involved with the Internet. Given such attempts as the control over the Internet, this measure has that same feel. The Internet is the last bastion of free speech. It needs to stay that way.

A thought comes to mind. Is this a way to keep "citizen journalism, ie bloggers" at bay so that reputable, professional journalism keeps their position?

I'm not screaming conspiracy here, just wondering if the FTC is being influenced by the legitimate news industry?

I think that full disclosure is always welcome and it makes sense to me.

I just hope we can move on quickly and get back to communicating and connecting to the best of our ability and if we get paid for it, there's full disclosure. Pretty simple to me, I guess. :-)

Ed

Is it perhaps a bit too far-reaching in that it sounds like the FTC can hold companies liable for what thier employees post on their own personal blogs and social pages (Facebook). (See bottom of paragraph three http://bit.ly/I8vMj) Does every idle tweet have to have a disclosure statement? If some kid works at Burger King and posts how much he loves the Whopper on Facebook without mentioning he works there, will BK be fined $11,000 for each mention? BTW: I do not work for Burger King or Hunton & Williams.

Thanks for sharing. I agree, nothing to freak out about. Being transparent and honest is what leads to great, lasting relationships. :)

We are humans, so we are naturally biased. So you'd think that since we know that, disclosure would be a non-issue.

But when I read something-especially a glowing review--and the only link is to their product I'm suspicious. I can't help it, it feels like they are trying to slip something by me.

When they disclose though, even if it's the CEO, I pay attention to their words and accept their opinion as valid. I still do my own research of course, but I've allowed myself to be influenced.

Several of the companies I write for prefer that I don't write about them outside their purvue, so I haven't needed to disclose yet.

I can guarantee though that if the chance ever comes up, I'll disclose with pleasure!

I absolutely agree that there should be disclosure, I have been animate about disclosure since I began my blog two and a half years ago. I even go beyond what they FTC regulates because if I get something for a barter or anything like that, it's different from what I would actually buy with my own money.

My only problem is that the FTC is singling bloggers out. It's a total double standard. Traditional media is way more guilty of getting special treatment from companies, gifts, trips, dinners, etc... and they carry more influence (for now) than bloggers do. I find the penalty heavy handed, and insulting that they consider bloggers to be unprofessional, when in fact the bloggers who carry any influence at all are indeed professionals.

I completely disagree with the FTC stance on disclosure. I think that this is government regulation over free speech, and basically making the stance that people are too stupid to live without government. I'd rather they keep out and just go after real problems. My take on what an FTC disclosure should sound like is posted at http://www.fredposner.com/ftc-disclosure/

Disclosure is I suspect a good thing up until it taints the very nature of making a living. If the typical reaction to disclosure is to the doubt the words of the discloser this is a bad thing. It's a cultural thing in our society that I'd be interested to learn more about. What is the typical reaction when people read, "Hey I got this product or I get paid to give counsel to x company who participates in the industry I'm writing about."

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