On the 1st December 2009 new changes to the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising come into effect. This is potentially big news for our industry as the new guides address the fact that advertisers are increasingly harnessing Web 2:0 technologies and social networks for word-of-mouth marketing.
A legal perspective on the FTC guides was posted by a leading city law firm Field Fisher Waterhouse last week and includes some interesting comments.
The new guides recognise the common practice of payment for reviews on Blog sites as a form of advertising and seek to regulate this practice in much the same way as other similar activities or advertising. The FTC have given specific examples quoted in the Field Fisher Waterhouse commentary but include;
“Paying a blogger to post a review clearly requires disclosure as does a word-of-mouth marketing program that periodically sends consumers products for review. Sending a free sample to a blogger with a request to post a review may qualify as a “material connection” depending on the value of the product and the frequency that this occurs.” (for more visit the Field Fisher Waterhouse site).
Also made clear from the guide is that the responsibility for disclosure is placed upon the Blogger not the advertiser.
As I see it this will impact the SEO/Social media communities in the following ways, but mainly this rasies a lot of questions:
1. Bloggers that receive payment for posting reviews/other content are obliged to disclose this fact.. but will they? and how will this be enforced?
2. If posts with the appropriate disclosure are identified by Google, will Google react negatively? Will these be seen as paid for link sources and penalised?
3. Given the method of disclosure is not specified then actually wont it be pretty easy to disguise the disclosure from Google in any case? (i.e. the disclosure could be placed in an image)
4. Following on from above will this unleash a spate of people reporting blogs they suspect of receiving payment without disclosing to the relevant authorities/Google?
5. What are the FTC expecting bloggers to do about all of the historical content/reviews that were paid for before these guides came into play?
6. Does anyone else think that potentially this bites off more than it can chew given the sheer volume of content?
I’d be interested to hear comments from others to see if this can be clarified any further…
Does this outline how the FTCplan on determining what has been paid for and what hasn’t? If I were to blog about hand cream woudl I have to scan in the receipt to prove I had paid for it? What if I’m sent a free sample without a request to review, but then decide to anyway, do I have to disclose that?
If Google, with all their expertise & resources are still unable to detect a paid link reliably, how do the FTC expect to be able to detect paid blog posts. I don’t think they have the first idea what they are doing.
yeah thats where my thought process was heading.. will it be trial by witch hunt?? could this descend into tit for tat accusations.. or will it just prove to be unenforceable…??
I don’t see how it could be anything but unenforceable. In order to make this work the FTC will have to figure out a way to crawl all blog content on the web, in order to identify posts that meet certain “paid post indicators” these posts will then need to be manually reviewd to determine the likelyhood that they are paid, they will then need to confirm that the blogger is in fact in the USA. After all of that, the burden of proof will lie with them, how do you prove that I accepted payment when there is no paper trail? My lack of receipt for goods does not count.
If they manage to jump all of those hurdles, they may acheive a small number of successes at a prohibatively high cost. It will be a PR nightmare, as 1000′s will be watching, and waiting to report on every move they make with this.
As I see it, the problem is exchanging payment for a guaranteed positive review of a sevice or product. This undermines the very nature of a review and therefore could be seen as potentially misleading. However, in order to stamp out these false reviews, genuine reviews of products or services, that bloggrs have either recieved as a gift or paid for, will be harmed. Where is the harm in recieveing a free product and writing a positive review? As long as the free gift isn’t conditional upon a positive review I see no problem.
Hopefully the changes to the FTC guides will encourage bloggers to write both positive and negative reviews of products. On a blog with mixed reviews, disclosure of payment or the receipt of a free gift shouldn’t cause a negative impact. Other than clamping down on blogs that have nothing but positive reviews, I see no way the FTC can enforce these new changes.
Matthew, your post reminds me of the infamous case of the notable British philosopher Roger Scrutton and his ‘secret’ agreement with tobacco companies to influence public opinion in their favour.
Otherwise I find myself in agreement with your ine of thinking.
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Seems to me that this is yet another case of the traditional establishment trying to ‘manage’ internet influence as opposed to embracing it properly. We all know that there are major negatives relating to internet content but legislators have not yet grasped the positive potential associated with it. Instead of using outmoded practices in a futile attempt to maintain ‘control’ they would be better placed embracing the challenge and working with the enablers (eg Google, SEO companies, et al) to self regulate. Or is that wishful thinking? …….
Marketing has always been a ‘war’; internet marketing is no different in that respect and so, I believe it will continue.
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