We all thought bloggers aren't regulated, right? That we cold say what we want on-line and -provided we didn't directly slander (or is it libel? I am never sure) someone who gave a shit, we were exempt from liability for speaking our minds about all sorts of stuff. The First Amendment and all that. Yes there are copyright agreements and all that good stuff, but bloggers were never required to back up any statement they claimed as fact. I could say I ran into Elvis in the Public Library last month and no-one would bat an eye.
Well, as of December 1st, 2009 that has changed. The Federal Trade Commission (FTC) has introduced new rules surrounding endorsements and testimonials; and it includes bloggers and message boards as well as print, radio and the telly. There are clauses that cover celebrity and expert endorsements, too. So now Valerie Bertinelli will have to tell you she was paid by Jenny Craig to lose that weight and keep it off. (What? you didn't know?). Links to more information from the FTC is here; full Federal Register text here, and the FTC-produced videos explaining the new regulations are here.
So I'll have to watch me P's and Qs from now on. Just kidding! Thankfully, the FTC doesn't care about foul or salty language, or OSM would be fucked entirely. Not that I will be impacted much by the new regulations, anyway. I very rarely endorse anything. I once wrote favorably about a book, and I do carry links to books I recommend on this site (and there is no direct language that I could see in the FTC guidelines about hosting links -which I will get to later, because I found this point very interesting indeed). Other than books, most of my mission in life seems to be to find the flaws in things and highlight them in bitchy detail. And I am good at it! So I can never claim to be an endorser of very much at all...I find it interesting that I found out about this through Wellsphere, where I am a featured blogger -not that you would ever know that, because I never bothered to put the little picture thingy up here on OSM. Am I now in violation of some regulation? Eek! Is the FTC going to come and make an example of little old me?... (I digress). Yeah, Wellsphere e-mailed me about these new rules. (I knew they would come in useful someday). I did search subsequently and the New York Times did have an article about it a few years ago, and there was some discussion about it mostly on marketing and reviewers blogs and message boards. I think common-or-garden bloggers such as myself didn't have a clue about it.
And I wonder how many consumers know?
I am going to jump on a lot of points in this post -and I apologize in advance if this piece seems a bit disjointed, but I am trying to cover as much as I can here, and there is a lot to cover.
This particular set of regulations was last revised in 1980; long before Cher was flogging shampoo, Chuck Norris was pushing excercise equipment, and Billy Mays became famous just for selling anything that wasn't nailed down. It was also long before the Internet took off commercially in the 1990s. The FTC had no real regulations for the WWW and it showed and was exploited for most of the past two decades. So the new rules are long overdue and very much welcome -by me, anyway and I think by anyone who strives towards honesty in their transactions with others. This change will level the advertising and endorsement playing field. Now, having said that, Please don't expect everything on the Internet to be true from hereon in. Because I think most scammers will just completely ignore these guidelines, like they ignore the FDA, morals and ethics; maybe thinking that their position overseas or hidden behind a series of front companies/sites will protect them. But at least now you know that you can more freely question 'truths' you find on the internet and report questionable practices to our Uncle Sam.
But how does it all work?
One point I found mentioned ...somewhere, is that internet reviewers will now be held to a stricter standard than print reviewers. For example The New York Times (let's say) book, food or movie critics are not required to disclose in writing if they received the book, meal or movie ticket they are reviewing for free. A blogger, on the other hand, would have to disclose if the book or product was provided for free and if there were any conditions attached to that gift (i.e. it is only free if you say nice things about it. Or you don't get more free stuff from us UNLESS you say nice stuff about this one (although the latter condition is usually implied rather than spoken, so how do you disclose that?)). And then I wonder about the NYT critics and other gifts: If our print movie critic gets free popcorn to go with his free movie ticket, does he have to disclose the popcorn, even if the ticket is exempt? And are there ever any conditions; written, spoken or nudge-nudge-wink-winked between print reviewers and the people behind the products they review? It all gets very interesting when you start to dissect this stuff.
And Of COURSE there is my particular bugbear: The whole question of scammers and scam advertising on legitimate sites. I have made my thoughts and feelings on this issue very clear in my open letter to the head of WebMD recently. For a laugh, I wandered around some sites today that I KNOW advertise scammers and did a quick search. Yes, it is after December 1st, 2009, but most of them are still carrying adverts for both direct and indirect scams. Nice. But are they breaking the law?
Sites That Carry Scam Advertising
CNN.com (in fairness, I only found direct scammers here, in my very quick search. Is that better?)
CNBC.com (interesting! see below)
NYtimes.com (almost all of the scams are there!)
I should have just listed the sites that don't advertise scammers (that I recognized as such, anyway). It is much shorter:
Sites that DON'T Carry Scam Advertisements*
Fox.com (no public search available)
TheCW.com (no public search available)
I could probably go on and on, but I think I have made my point. Lots and lots of legitimate internet names carry links to scams on their sites. They are paid to do this.
Now I wonder if and how these sites are liable under the new FTC regulations?
The FTC guidelines didn't specifically state that carrying product links or advertisements on a website or blog constitutes endorsement of those products. However, that is the public perception. Read the comments on my Gordon's piece. Many of the people who bought into those products did so because a search on a legitimate site took them to Gordon's Habitual Scamming Center (through that notorious loophole: "sponsored links"). In my opinion, the legitimate sites who carry these advertisements do and should bear some of the liability burden here. However the regulations seem to skirt around this issue. (and I wonder how much lobbying went into the wording thereof? Hmmm)
Another thing I wonder about, in light of the the fact that different rules apply to blogs and print media: The Huffington Post (HP) is technically a blog, whereas I figure NYTimes.com is technically part of the newspaper. Does this mean the NYT carries more exemptions, as mentioned above? Will the HP bear more liability than NYTimes.com, say if both carried the exact same review worded the exact same way? What about if both carry exactly the same links or endorsements?
...And what about broadcast media such as CNN and ABC? Will their site content be regulated differently than their broadcast content?
And do responsible advertisers such as NBC and MSNBC (but not CNBC. ...why NBC, why???) get any kind fo kudos for acting properly without a government stick as inspiration?
It's all interesting stuff, right?
Another thought that occurred to me is this one: How the fuck do the FTC plan to enforce these new regulations? Do they have scores of staff reviewing review sites, or are they relying on consumers to report dodgy reviews? (and if so, how will consumers know what is dodgy and who to tell?) You know, although I really really welcome these new regulations and think they are a very good thing: It all seems rather poorly thought out.
However, it's a lot better than nothing, which is what we had before.
*i.e. advertisements that were immediately recognized by me as scams. However, I don't claim to be the all-encompassing authority on this subject...