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Tuesday, October 6, 2009

FTC Wrong to Regulate Deceitful Bloggers

This is the second post in my continuing series, What's Newer Than New New Media, which examines developments in the world of blogging, YouTube, Facebook, Wikipedia, etc - what I call "new new media" - since the publication of New New Media in September 2009.

The Federal Trade Commission (FTC) announced yesterday that, starting December 1, 2009, bloggers could be held liable - to the tune of up to $11,000 in fines - for not disclosing that they were paid to write favorably about a product or service. As the FTC put it, "bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service."

This has been brewing for some time. I address it extensively in New New Media, published in early September. The issues and possible consequences bear repeating.

First, I think that a blogger or anyone who fails to disclose a paid endorsement - who gives the impression that he or she likes or approves of something, when in fact the main motivation for the blog or whatever statement is payment from the purveyor of the product or service - is behaving unethically. Such non-disclosures are lies of omission, pure and sample, and deceitful practices warrant being publicly called out.

But they do not warrant a Federal or any governmental fine, which is quite another matter.

To begin with, such lies of omission are not the kinds of false assertions which are already prohibited by the FTC. Claiming that a car gives you 25-miles-per-gallon when in fact the best it can do is 15 is a bald-faced lie of commission. Such black-and-white falsities bear little resemblance to paid-for appreciations of products that masquerade as genuine endorsements. The first kinds of lies can pump false statistics into the public realm. The second kind is likely to do no more damage than making consumers feel good about a product, which would only happen if the consumers already had confidence in the blogger. As word of the blogger's deceit spread, such confidence in the blogger would shrink - without the need for government fines.

More important, government regulation of any communication, especially backed by hefty fines, is in danger of contradicting the First Amendment insistence that "Congress shall make no law ... abridging the freedom of speech, or of the press." Clearly, blogging - even for undisclosed payment for endorsements - is a form of press. And where would such regulation end? Are reviewers of movies, rock concerts, even books, obliged to disclose that they were given free tickets or copies of the book under review? Is a rave review undermined when it flows from media content provided gratis? Should our major publications and broadcast media be fined for such non-disclosures?

If you would say no - as I certainly would - then you must consider why bloggers should bear this burden. Is not the FTC beating up on a new new medium, most of whose practitioners lack the legal clout - as in in-house attorneys - to stand up to the government on this issue?

In view of these serious concerns, I would say the best policy is criticize and condemn deceitful bloggers - but don't let the government fine them.

See also:

What's Newer Than New New Media, Post 1, about Amazon, 1984, and the Kindle

What's Newer Than New New Media, Post 3
, Taliban on YouTube: A New Entry in the Dark Side of New New Media
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