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
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.
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Comments
It was always assumed that traditional media had a "separation of church and state" in their ad/marketing divisions and editorial divisions, but in the age of mega-mergers and media monopolies, the line often blurred. How many coverstories of Warner Bros. propoerties has Entertainment Weekly (a Time Warner company) published for example.
Having said all that -- I don't think advance copies of books or screeners or "press passes" to previews of plays or films or gallery exhibits or concerts should be considered "pay." Most of my reviews stem from unsolicited media that grabs my fancy that I want to write about, but if I get the occasional advance copy, I do not view it as a conflict of interest. Now, if I had my airfare or meals or hotel accomodations paid for, or if I received cash or advertising dollars for my review, that's a very different story, and a simple one sentence disclaimer is not unreasonable. But how many traditional media corporations engage in bartering or free services and favors that the hired journalists might not even know about.
Slippery slope, here we come.
However, as a consumer of those reviews (and the products they describe), I find value in knowing who got their stuff for free. More importantly, I want to know who might be getting paid for their endorsement, as obviously those reviews are to be taken with a large grain of salt.
I beg to differ. Such non-disclosure is a lie of commission not omission. It's intentional.
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."
How about this: If a journalist were paid to write an article extolling the virtues of a new product--let's say a new car model--would the journalist be misleading the public? Of course. Let's go back about 50 or so years to the "payola era" of radio. The public still got to listen to the rock and roll but the "payola" was still illegal.
Like political ads or print ads which take the guise of "editorial content", these blog publications are duplicitous and should require a disclaimer without which the writer/publisher could be subject to a fine.
Sorry, I don't buy your claim that this ought to be absolutely covered by the 1st Amendment protections. I think an argument could be carried forward that "exposure to this blog material could be construed as both a fraud and an assault which puts the right to free speech out to the highest bidder" (quotes mine).