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Big Brother turns his eye to bloggers


Jack Willis July 30th, 2009

There he goes again. Big Brother has proposed new endorsement guidelines, some of which are aimed at bloggers who review or promote products or services. The Federal Trade Commission guidelines wou...

There he goes again.

Big Brother has proposed new endorsement guidelines, some of which are aimed at bloggers who review or promote products or services. The Federal Trade Commission guidelines would allow the government to go after bloggers it believes make false claims or fail to disclose conflicts of interest.

Is that a good idea: Big Brother going after bloggers?

Rich Cleland, assistant director in the FTC's division of advertising practices, told The Associated Press that if the proposed guidelines are approved (expected later this summer), bloggers would be expected to back up claims they make and also disclose any compensation. If they don't, the FTC could order them to stop, pay restitution and could even ask the Justice Department to sue for civil penalties.

"It's sort of a recognition that word-of-mouth marketing in whatever form, whether electronic or not, is a significant part of the marketing strategy of modern companies," Cleland told the AP. "Because it's new, I think it is imperative that we provide some kind of guidance."

The proposal at www.ftc.gov contains 86 pages. About 85 deal with advertisers, the FTC's traditional purview. But just two pages single out bloggers.

And therein lies the rub.

The FTC provided this example about a skin-care product's advertiser and blogger: "The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion's ability to cure skin conditions, and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition."

Because of that claim, both the advertiser and the blogger are subject to liability for false statements. The blogger, the FTC example concludes, is also liable if she doesn't disclose she is being paid.

The FTC has no business telling bloggers what they can write and what they can't. The blog is not a paid advertisement. Blogging is grassroots citizen expression, modern democracy in action. The FTC already has rules banning false advertising and unfair business practices. Bloggers have libel and privacy laws. Advertising may fall under FTC oversight, but bloggers should rightly fall under the First Amendment.

"On its face, it sounds like an unconstitutional infringement on free speech," said Mark Thomas, executive vice president of the Oklahoma Press Association. "You should be able to say whether you like a product or not, whether you're getting paid or not to say it, and not have the government peering into your personal life.

"I can't imagine it could ever make it past any of the free-speech advocacy groups. When push comes to shove, people get militant about their right to free speechw, whether somebody pays them or not."

An Oklahoma City blogger, Charles G. Hill of www.dustbury.com, used the camel's nose metaphor to illustrate the danger. The old Arab proverb relates that if the camel is allowed to get his nose in the tent, he will eventually get his entire body inside, and then he won't leave.

"This sort of thing troubles me since I tend to resist, almost reflexively, anything that smacks of government regulation," he said. "What will they want to control next?

"I'd like to think that J. Random Blogger cherishes his credibility, and that he'll do nothing to jeopardize it " that if he's promoting a product or service, he will say so up front. If the vendor of that product or service has made it available to him at no cost, or at a reduced cost, he will make it clear in his review."

Hill said that when Instapundit mentions a book, it links to Amazon.com. If you happen to buy that book just then, the political blog producer, Tennessee law professor Glenn Reynolds, gets a small cut of the proceeds.

"I don't have any problem with that," Hill said, "but people might wonder if he's mentioning the book specifically to hype his share of the take."

Others, he said, spell out every potential source of income from their Web sites.

Hill said that, ultimately, there will be some sort of nonprofit bloggers' organization. Members will display a logo similar to the old National Association of Broadcasters "Seal of Good Practice," certifying that the blogger adheres to certain principles.

"The alternative " handing oversight to the FTC " is much, much worse."

So, to answer the question: Should Big Brother be stalking bloggers? Absolutely not.

"I would hope the American people would dust off their Constitution and the Bill of Rights," Thomas said, "and stand up for themselves on this kind of a deal."  "Jack Willis

 
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