Summary: The Federal Trade Commission just issued regulations that, in essence, require bloggers (among others) to disclose any “material connections” between advertisers and endorsers. No one should be surprised: Restrictions on endorsements have been around for a very loooong time, consistent with the FTC principles of truth in advertising. It remains to be seen exactly what will be sufficient disclosure but it should not be a problem. The regulations also update (the first since 1980) the regulations for other endorsers, including celebrities.
(Read the release at www.ftc.gov/opa/2009/10/endortest.shtm.)
The Details.
You’ve probably read a blog that raves about some new gadget. It may well be that that the blogger has cut a deal with the manufacturer of that gadget—whether payment or simply receipt of one of the gadgets. And yet, you as the reader had no idea of that connection.
Well, that part—your lack of knowledge of any link—is about to change. The FTC now requires a blogger to disclose any material connections. The FTC went to great lengths in its notice in the Federal Register to discuss public comments and to provide examples (see www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf).
So What?
So we read about great gnashing of teeth and rending of hair among bloggers. It might be that these regulations touch an nerve of libertarianism incipient in the digital world. Or it could be that more than a few bloggers make at least beer money (and perhaps even a living) from these endorsements. It turns out that there are sites you can visit and sign up for such endorsements, which makes it easier.
But, putting that aside, perhaps it is as it should be. Blogging is just another means of communicating—a medium, to use an arcane word. Shouldn’t users trust opinions that are not based on payment or special favors?
What To Do?
But let’s put aside all of the polemics and just look at what has to be done. Look at Example #7 on page 79 of the FTC notice we mentioned above (www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf and go to p. 79). Referring to a video game blogger who received a free game to review, the FTC says:
Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge.
Not much help. But thinking about the FTC’s long tradition, it is helpful. They hate—and will often pursue—those who bury the disclosure in fine print. Moreover, they specify that the type of material connection—in this case, receipt of a free copy of the game—must be disclosed.
Soooo, trying something like the following will probably work:
“[Name of Blogger] received a free copy of the Lawyers in Love video game reviewed below”, in the same size font as used throughout the blog and near the introduction or above the fold. But, truthfully, we don’t know yet (and if you do, then let us know).
Think about it this way: What would you want to know and where would you want it to be on the website?
James C. Roberts III is my long-time colleague, a world-savvy attorney in new technology, new media, IP, entertainment, green and clean tech and mergers & acquisitions, as well as other transactions that matter. Check out his Global Capital Law Group at www.globalcaplaw.com
