The FTC vs. Bloggers: Word of Mouth Guidelines or Caste System?

“When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected
by the audience), such connection must be fully disclosed.”

Now in the example of the college student blogging about video games, they say he’s established as an expert, but that since he’s on a blog nobody would expect him to get free games.  Perhaps we should ask who wouldn’t expect a video game expert to get review copies?  If he’s enough of an expert to have a decent-sized audience and traffic, of course I would expect him to get review copies. That’s how reviews work. In journalistic circles, it is often considered unprofessional to buy products in order to review them. Without an explanation of why the FTC thinks such a person shouldn’t get a review copy, I am forced to conclude the FTC is trying to draw a distinction between amateur and professional writing.

A reviewer/columnist/reporter for a magazine would apparently be expected to get a review copy, as such people are clearly omitted from the examples in the guidelines.  Is the college student with a blog less of an expert than the video game guy in the local newspaper?  Maybe he is, maybe he isn’t.  Certainly, anyone who follows media can see that online news is getting broken up to niche-specific sites.  This raises a question of authority and a question of intent.  The question of authority is who exactly is it that determines if one should be expected to have a complementary copy of something for review?

The question of intent is thornier.  Is this to establish different rules for amateurs and professionals?  If it is, more questions abound.  Is this college blogger with a following a celebrity in his field?  They propose a different set of rules for celebrities, but clearly that’s not how they see this.  Perhaps the FTC doesn’t consider an Internet personality a celebrity. Best not to bring up the concept of a celebrity journalist or someone who’s famous for being famous and happens to write things on blogs or, the heavens forbid, Twitter.

If on the writer/journalist side of these guidelines, there are to be separate protocols for amateurs, what exactly constitutes a professional with a blog/website? I am fond of an off-color definition of being a professional writer from the author, Ron Goulart: “Writing is a lot like prostitution.  Once you get paid, you’re a professional.”

The FTC isn’t likely to go for that as a legal definition, but is being a professional measured by total income or pageviews? Genre fiction writer associations sometimes define professional status by word rate, but that isn’t really applicable to online self-proprietors. If you want to have two standards, there needs to be a better definition than “connection is not reasonably expected by the audience.” This is a slippery slope and smacks of a caste system for commentary.  If you take it to the next logical extension, you might find yourself asking “do I need to get a license before posting an opinion that could be construed to be a product endorsement?”  (Well, at least a positive one.  The FTC seems unconcerned with people posting negative comments.)

And on the other hand, it may simply be the FTC thinks that getting a free sample or review copy is the same thing as taking a bribe. That might even be more offensive to everyone involved.

Still, at this point, Internet people should step back and consider the larger picture.  These new guidelines are much more concerned with medical claims (like what realistic expectations for a weight loss drug might be), than whether a “blogger” should be commenting on/endorsing a product.  Most of what those guidelines seek are reasonable.

Bottom line: The language and perhaps the reasoning behind the proposed regulations on “bloggers” needs more work and clarification before the guidelines end up in court and start costing us all some tax dollars just to get some interpretation on the books.

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