Bloggers beware: Big Brother is watching

The thing about April Fool's Day on the internet is that -- for a period of several days -- it's very difficult to trust the veracity of news items that people send your way. You tend to cast a skeptical eye on things like this Financial Times article, which was the story most often forwarded to my inbox last week.

Regrettably, the story is authentic. It covers regulatory changes the FTC seems intent to move forward with -- changes that deal with bloggers and how they talk about products online. Here's a key quote from the article:

"Revised guidelines on endorsements and testimonials by the Federal Trade Commission, now under review and expected to be adopted, would hold companies liable for untruthful statements made by bloggers and users of social networking sites who receive samples of their products. The guidelines would also hold bloggers liable for the statements they make about products."

I can understand the desire to curb the influence of bloggers who have turned into undisclosed corporate shills. I have been speaking out against that practice for years. I can also understand that certain companies will attempt to game the system when it comes to social media. What I can't understand is why ordinary citizens will have to suffer as a result.

I have been blogging for more than five years. I've been posting comments to review sites and other people's sites for much longer. If, suddenly, I could be sued by the government for offering up a comment about a product I've tried, it is highly unlikely that I'll continue to review products online. If enough people take this stance, we won't be able to turn to one another for product advice. Should I go out to all the review sites and take down my product reviews? The FTC is apparently telling me I could be sued for them.

I reject wholeheartedly that the mere publishing of content on the internet grants an individual some sort of special status that requires regulation on the part of the government. We all discuss products over the backyard fence in real life. Should the fact that these conversations are now taking place on blogs and via other social media make a material difference to the FTC's mandate to protect consumers? I think not.

I also have a major problem with how the guidelines would deal with the following situation: Let's say I go for a walk in the park and there's a street team there handing out samples of sunscreen. Let's further suppose I take one, and the next day I post on my blog that I used the sunscreen, and it also apparently cleared up the dry skin on my elbows. If the FTC has an issue with my suggestion that the sunscreen ought to be used to clear up dry skin, it can sue me. If a lawsuit is filed, the manufacturer and I would be hauled into court as the result of a run-of-the-mill sampling program -- a tactic frequently used by CPG manufacturers to stimulate trial of a product.

Yes, I understand the differences between commercial speech and political speech. Yes, I understand that undisclosed corporate shilling is a problem. Do I think this merits giving the U.S. Government dominion over online product recommendations? Hell, no.

Tom Hespos is the president of Underscore Marketing and blogs at Hespos.com.

 

Comments

Michael Downs
Michael Downs April 12, 2009 at 10:05 PM

I disagree.

First, you claim to understand the difference between political (free) and commercial (regulated) speech, but it's clear you don't. In the U.S, if you are a compensated endorser, it is incumbent on you to be factual and forthright in your representations and be clear about the compensatory relationship. The FTC rules are merely extending that definition from offline to on.

Second, your statement: "What I can't understand is why ordinary citizens will have to suffer as a result", borders on the absurd. Both before and after these rules are enacted, consumers need not fear government persecution for statements of opinion about products or companies. Should they present those opinions as fact, should those facts be false, and should their comments cause harm, then they may have a problem, but not with the FTC, with libel laws already on the books. Further, most reasonable people recognize that rules promulgated to increase transparency, accountability will benefit consumers.

Third, regarding your statement: "I've been posting comments to review sites and other people's sites for much longer. If, suddenly, I could be sued by the government for offering up a comment about a product I've tried, it is highly unlikely that I'll continue to review products online", speaks directly to your confusion about what constitutes statements of opinion vs. statements of fact.

Fourth, regarding your sunscreen hypothetical, the situation you describe is an advertising promotion and does not rise to the definition of a compensated endorser. Further, unless you hold yourself out as an expert in the science of dry skin or claim that after curing your dry skin you also grew six inches, re-grew your hair and regained your sight, you've got little to worry about from the FTC.

Fifth, regarding your statement: "I reject wholeheartedly that the mere publishing of content on the internet grants an individual some sort of special status that requires regulation on the part of the government", you will be happy to know that publishing content on the internet does not change your status under FTC regulations, federal, state and local laws.

Finally, comments by others lamenting America's slide into a culture of victimization are likewise unpersuasive. Laws governing commercial speech have been on the books for over 100 years. Implementing rules enabling legislation and enforcing those rules as new forms of commercial speech evolve is why congress created the FTC… in 1914.

For paid bloggers and social network endorsers, so long as you are truthful and transparent in your representations, you have nothing to fear from these regulations. While less sensational, this AdAge article should help: http://adage.com/article?article_id=135938.

Tom Kasperski
Tom Kasperski April 10, 2009 at 10:14 AM

I fear the new societal mindset is we're all victims - too gullible or stupid to take personal responsibility for our actions.

It obviously hadn't occured to the FTC that blogger's only real asset is their reputation. If a blogger squanders their reputation by promoting an inferior product, and the product doesn't deliver the on a claim, the blogger will lose credibility and reputation...and POOF, their audience goes away.

Jonathan Trenn
Jonathan Trenn April 9, 2009 at 12:32 PM

Tom

Is the FTC using any guidelines for this? Maybe pertaining to coordinated efforts between a CPG and a series of bloggers to spread false claims? Or is it anything goes situation?

Tom Hespos
Tom Hespos April 9, 2009 at 8:27 AM

So your take on it is that you'd rather hold a blogger responsible for giving advice than a reader responsible for taking it?

To me, a culture of responsibility would hold people accountable for their decisions by acknowledging the fact that we all have the capacity to think, and to decide for ourselves what advice is worth taking and what's worth ignoring. What you're describing seems like it would shift responsibility to the people who share the ideas instead of the people who consider them and act on them.

Paul Garcia
Paul Garcia April 9, 2009 at 7:52 AM

It's not much different than consumers being allowed to sue McDonalds for serving hot coffee and then spilling it on themselves. Granted that coffee was too hot, but duh, it's hot coffee. Eating/drinking in your car is distracted driving. Did she get in trouble for that? No. I'd like to go back to an era like the 50's when there was much more self-responsibility. If you got hurt because your friend shot you with a BB-gun, it was your friend's fault, not the gun. Oh wait, wasn't that Dick Cheney?

There does need to be a distinction between giving advice, and reporting an experience. I can tell you what happened to me with no ramifications. But if I start "shoulding" on you, I'd better watch out. You can't have an argument if you only talk about yourself, so bloggers who talk about their own experiences seem safe. Bloggers who instruct others how to behave need to take responsibility for their position of authority, even if it is artificial authority. "With great power comes great responsibility." When a blogger says "this is what I experienced or observed when..." it's different than, "try this to accomplish that."