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Reason Foundation

The FTC Plans to Regulate Blog Content

Steven Titch
June 25, 2009, 5:45pm

In what represents the most chilling attack on online free speech to date, The Federal Trade Commission is proposing new guidelines that will require even casual bloggers to back up any product claim, recommendation or endorsement they make and state whether they received any renumeration, or face fines or civil lawsuits. Merely hosting a link to a retailer, even if served independently from a service like Google Ads, could result in a violation for a blogger who elects to comment or review a product or service he or she also advertises.

As the Deborah Yao of the Associated Press reports:

It would be the first time the FTC tries to patrol systematically what bloggers say and do online. The common practice of posting a graphical ad or a link to an online retailer — and getting commissions for any sales from it — would be enough to trigger oversight.

The article goes on to show the can of worms this will open, especially for small sponsored blog sites seeking to offer niche product information.

Bloggers complain that with FTC oversight, they'd be too worried about innocent posts getting them in trouble, and they say they might simply quit or post less frequently.

Between ads on her five blogs and payments from advertisers who want her to review products, Rebecca Empey makes as much as $800 a month, paying the grocery bill for a family of six. She also has received a bird feeder, toys, books and other free goods.

Now the 41-year-old mother of four in New Hartford, N.Y., worries that even a casual mention of an all-natural cold remedy she bought herself would trigger an FTC probe.

"This helped us. This made us feel great. Will I be sued because I didn't hire a scientist to do research?" Empey said.

Empey, whose blogs include New York Traveler and Freaky Frugalite, said she discloses compensation arrangements on a page on her blogs or through a "support my sponsor" logo. She said most of her readers understand that she sometimes gets compensated.

By contrast, a mommy blogger on Double Bugs praised Skinny Cow low-fat ice cream sandwiches and thanked a Web site called Mom Central for the chance to try them. But there's no clue that Nestle SA's Skinny Cow division was giving bloggers coupons for free products.

It gets more chilling as you read on. The FTC would even scrutinize your “tweets.”

If the guidelines are approved, bloggers would have to back up claims and disclose if they're being compensated — the FTC doesn't currently plan to specify how. The FTC could order violators to stop and pay restitution to customers, and it could ask the Justice Department to sue for civil penalties.

Any type of blog could be scrutinized, not just ones that specialize in reviews.

So parents keeping blogs to update family members on their child's first steps technically would fall under the FTC guidelines, though they likely would have little to worry about unless they accept payments or free products and write about them.

But they would need to think twice if, for instance, they praise parenting books they've just read and include links to buy them at a retailer like Amazon.com Inc.

That's because the guidelines also would cover the broader and common practice of affiliate marketing, in which bloggers and other sites get a commission when someone clicks on a link that leads to a purchase at a retailer. In such cases, merchants also would be responsible for actions by their sales agents — including a network of bloggers.

Amazon declined to comment.

[Rich] Cleland [assistant director in the FTC's division of advertising practices] said the FTC would likely focus on repeated offenses that continue after a warning to stop.

Still, the agency has a big job ahead as new communications channels continually emerge. Advertisers now are paying some Twitter users to post short items through the increasingly popular messaging service. The FTC says the guidelines would cover such arrangements, regardless of the medium.

The Internet is, as someone once said, the electronic equivalent of the backyard fence. It is also a vehicle for viral advertising and marketing. No line separates the characteristics and most users on some level fathom that. Enter the FTC, which, in a clumsy, obtuse and nannying way, deigns to draw such a line with a bold, black smudgy marker, which will leave nothing but a big mess. This idea is on a collision course with the First Amendment, if it doesn’t collapse under its own weight first.



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