Disturbances in the Blogosphere
posted by Jon Siegel
The FTC recently churned up the blogosphere by releasing new “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that indicate that bloggers — bloggers! — have a duty clearly and conspicuously to disclose whether they have a “connection,” such as the receipt of free product, with the makers of products that they endorse. (See particularly section 255.5, Example 7.) We thought that we were just posting stuff on our blogs, but suddenly it’s a federal matter.
Like most bloggers, I believe in freedom to blog, but I have to say I think the FTC has a point. The FTC’s statutory mandate is to stamp out “unfair methods of competition . . . , and unfair or deceptive acts or practices in or affecting commerce.” This venerable proscription should apply to new media as well as to old. The Internet is new and cool, but deception over the Internet is still deception. Deception on a blog is still deception.
If you’re representing yourself as a source of unbiased information about consumer products but (to take the simplest case) you’re actually getting paid by someone to say something nice about their products, there’s some deception going on. Whether it’s deceptive not to reveal that you’re reviewing a product that you received for free because you’re known to be an influential reviewer is a closer question. I expect magazine reviewers get free stuff all the time, but they don’t necessarily reveal it conspicuously, precisely because it’s already keyed into our assumptions. If the proscription against deception carries over to new media, the assumptions that mitigate deception should carry over too. So it’s ultimately a question of fact whether people assume bloggers get free stuff. But the basic point that it should be as unlawful to use a blog to deceive as to use anything else for that purpose is sound.
Also churning up the blogosphere is the opposite trend — the consumer use of blogs and other Internet avenues to say not-so-nice things about products and services they received. Usually big corporations have an edge in battles with consumers, but the Internet levels the playing field somewhat in this regard — the manufacturers and service providers have to be concerned about the ability of one dissatisfied consumer to communicate the problem to millions.
Let me join both trends at once. I recently redid my kitchen, and got all-new KitchenAid appliances. I’m sensitive to noise, so I carefully investigated the noise levels of the refrigerator and dishwasher, and they’ve turned out great. (FTC-Recommended Full Disclosure: I didn’t get a dime for saying that but I would be happy to accept an appropriate fee. KitchenAid, call my agent.)
But the oven! Would it even occur to you to check whether an oven might make too much noise, or, indeed, any noise at all? Well, my consumer friend, I want you to know that if you’re thinking of buying a KitchenAid range, you’d better check into it. Every time you switch on the oven (on my model at least), a fan comes on — quite a noisy fan, too, in my (admittedly sensitive) estimation. And it stays on the whole time you’re cooking. The purpose of this fan, I learned from a quite unapologetic KitchenAid representative, is just to cool the range’s electronic instrument panel. There’s progress for you — first they install a souped-up electronic panel you don’t really need (what was wrong with knobs, exactly?), and then they have to add a noisy fan so the panel won’t overheat.
The range had to go. I knew I couldn’t live with that fan noise, so I set out on a search for a range with a quiet oven. But it turns out to be impossible to search, because you can’t listen to ovens in stores — they’re not connected up. And they’re not rated for noise either. There’s no way to tell whether an oven is noisy short of buying it and installing it. After calling every appliance store for 50 miles around, I finally found a knowledgeable salesman who recommended GE Profile, and (after spending just a few hundred bucks to get the countertop reconfigured) I got a GE Profile Double Oven, which, thank goodness, is much, much quieter. So that’s what I recommend.
And I didn’t get a dime for saying that either.
October 21, 2009 at 6:38 pm
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Responses (3)
Maryland Conservatarian - October 22, 2009 at 2:43 am
At times it seems the biggest fear within the Federal Government is that somewhere someone is doing something and the Feds don’t have oversight (and I suspect that much of the CO community believes this to be a rational fear).
michael webster - October 22, 2009 at 3:39 am
The big point of the new Guidelines on Section 5 was the removal of the safe harbor for testimonials which are outliers. No longer can an advertiser be assured that a) he can use an outlier, and b) the standard disclaimer clause will be an absolute defence.
See my article: http://www.bizop.ca/blog2/due-diligence/testimonials-and-disclaimers.html
Law Student - October 23, 2009 at 2:43 am
I think much of the issue taken with this new guideline is that it is a swipe at new media and bloggers. This doesnt regulate traditional media people at news papers who receive books to review etc. It plays into this notion that bloggers are incredibly unethical and news paper reporters are spotless. this is clearly not the case. read the attempts to justify this provision,
http://www.edrants.com/interview-with-the-ftcs-richard-cleland/
and kos’ takedown
http://www.dailykos.com/storyonly/2009/10/13/03713/056
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