Comments on The Boston Bibliophile: Guest Post: FTC FAQ For Book Bloggers

Thanks for providing this helpful information. It...

2009-10-14T15:16:45.810-04:00

Thanks for providing this helpful information. It's good to know that we will have all of our ducks in a row.

MLO - You are of course correct that the analysis...

2009-10-14T09:50:47.004-04:00

MLO -

You are of course correct that the analysis provided in an article such as this would be different from the advice provided by an attorney retained to consult on a particular situation. For example, I have avoided providing specific guidance on the form of a disclosure that bloggers can use, because in my judgment that would step over the line (as an ethical matter) into the type of communication better handled within the protected confines of an attorney-client relationship.

The primary point of the FAQ, and the comments I have made here, is to clear up misconceptions about what the FTC Guides do and do not say. There was significant confusion about what the Guides will require come December. I hope I have managed to do that.

Is any of this new? Well, it is true that the Guides merely interpret Section 5 of the FTC Act, so the power was always there for the FTC to take action regardless of whether the Guides existed to warn people. It is also true that the FTC will likely do what it has always done, and focus on people who are engaging in egregiously deceptive behavior in the marketplace.

However, I think it important for people to know and understand the extent to which a government agency has asserted its authority over the Internet, which is broadly perceived as unregulated. Only by understanding the FTC's action properly can there be a real public dialogue about whether this is the right way for the FTC to combat the evils that it was created to prevent. Maybe that dialogue results in a conclusion that the FTC's action is a minor extension of existing activity, which does not significantly impact freedom of speech and press; but maybe not.

Jeff

People should keep in mind that we pay our attorne...

2009-10-13T13:13:36.842-04:00

People should keep in mind that we pay our attorneys to give us a worst case scenario - at least most businesses do - when it comes to general stuff. If you actually retain an attorney, the advice is going to be a bit different - how to stay out of court. There really is nothing new here by the FTC. Reviewers of print media have always been assumed to receive galleys which is why they don't publish it on the front of their review section.

Speaking from a historical point of view, the truth is, the furor over these rules is silly and will not, over time, stand up unless it is a full on press to stop online reviewers from competing with old media.

Having worked in some of the most heavily regulated industries around, it doesn't matter what is said, it matter in how it is enforced. I don't see a great deal of revenue being acquired by fining individual bloggers, so, honestly, unless you are consistently lying about your reviews, I doubt you have anything to worry about.

Thanks for a great, informative post. I think mos...

2009-10-13T10:56:09.283-04:00

Thanks for a great, informative post. I think most of my questions have been answered. I have no problem disclosing review copies, and I do that already. I guess I'll just insert the word "free" before review copy to cover the bases.

--Anna
Diary of an Eccentric

Serena -- It sounds like you've got it right;...

2009-10-12T19:09:30.648-04:00

Serena --

It sounds like you've got it right; bloggers are only required to disclose books, etc., they get for free from a publisher or advertising agent in expectation of a review. If a blogger gets books anywhere else (bookstores, libraries, holiday gifts, giveaways by non-publisher-affiliated sources) they don't need to disclose the source.

As for retroactivity to pre-12/1/09 reviews, the Guides are not clear, given that older reviews typically remain available long after their release date. However, I would be very surprised if the FTC interprets the Guides to require bloggers to go back and revise earlier reviews. Normally, regulations affecting publishing are only targeted at content created after the date the regulations become effective.

Jeff

It seems to me that as long as there is disclosure...

2009-10-12T12:26:03.272-04:00

It seems to me that as long as there is disclosure of the free books on each review post, that the FTC should not take issue.

I'm wondering if I now have to disclose that t...

2009-10-12T12:25:19.193-04:00

I'm wondering if I now have to disclose that this book came from such-and-such public library or I bought this book at such-and-such retailer as well?

And are these rules as of Dec. 1, 2009, retroactive to previous posts on my blog.

Thanks so much for all of this information. As an ...

2009-10-11T09:41:50.622-04:00

Thanks so much for all of this information. As an author/book blogger who enjoys giving away my own books, I was confused about the issues surrounding this new action. You've clarified quite a few things for me. :)

Thanks for this post Jeff; I have to admit before ...

2009-10-11T09:16:48.461-04:00

Thanks for this post Jeff; I have to admit before I read it (and even a little after) I was a little confused about the issue. It seems to me most bloggers already disclose their source of books.

Thanks for taking the time to address the issue.

Thanks to Jeff for the post and for taking the tim...

2009-10-11T06:32:09.018-04:00

Thanks to Jeff for the post and for taking the time to clear up our questions!

Thanks, Jeff...thank goodness there is SOME ration...

2009-10-09T19:35:26.112-04:00

Thanks, Jeff...thank goodness there is SOME rationality to all of this *smiles*

Update: Richard Cleland has spoken again, this tim...

2009-10-09T13:48:31.821-04:00

Update: Richard Cleland has spoken again, this time saying that, whatever the Guides may suggest, the FTC has never and will never sue an endorser simply for failing to disclose a material connection. See http://bit.ly/16Jv7z

Sounds to me like the FTC has heard the voices raised in concern, and is seeking to reassure everyone. This sort of reinforces my belief that, absent truly outrageous behavior, the most that bloggers can expect to see is a cease and desist notice indicating the disclosures they should be making.

Jeff

Jeff- Thank you for the reply. I find it kinda fun...

2009-10-09T11:57:20.670-04:00

Jeff- Thank you for the reply. I find it kinda funny, if you follow this logic. What's the point of returning a book?
Personally I'm waiting to see more on this. But I have added a disclaimer to my blog.

Lady Jane -- As far as I understand the FTC's...

2009-10-09T10:20:07.972-04:00

Lady Jane --

As far as I understand the FTC's rationale, they consider the mere fact that you get the book to be compensation, regardless of whether it can be transferred.

In a related context, the FTC has indicated that providing free movie tickets in exchange for an endorsement of the movie would be an incentive that needs to be disclosed. In that case, of course, the person receiving the tickets does not get to "keep" the movie, much less give it away -- the benefit is merely the opportunity to see the movie, not the ability to resell it later.

Following this logic, the FTC could have taken the position that it would not matter if a blogger gives away a galley or deletes an e-book, since (like watching a movie) it is enough of a benefit that they'd been given the opportunity to read it. Richard Cleland's comments suggest that the FTC will not go that far with respect to book bloggers, but there's arguably a logical inconsistency between saying that a book blogger can avoid disclosure by disposing of a book after reading it and saying that a movie blogger has to disclose even though they walk away with nothing tangible after the movie. The difference is likely down to an instinctive perception that possession is more relevant with respect to books than with respect to movies, but it's not clear why that would affect the legal question of whether a benefit has been received.

As far as how the FTC will discover whether you've kept a book or not, it's an excellent question. As I mentioned in response to J.T.'s post above, the most likely way for the FTC to find a book blogger is through the publishers who distribute copies. At that point, the FTC would presumably ask the blogger what happened to the book. Whether they'd care enough to check if the blogger's response is true is anyone's guess.

Jeff

Jeff- That was one of my questions. Yet I have to ...

2009-10-09T08:47:38.633-04:00

Jeff- That was one of my questions. Yet I have to wonder how do they know I still have the book without actually looking on my hard drive. But that point could be argued with print books as well, how would they know you returned said book, without checking.
My question actually stems from another post where the point was made that most book bloggers are not paid and it was said that a book blogger could get monetary compensation from selling their books. E-books are non-transferable. You can't resell them or even give them away. When you no longer want them the only option is delete.
So how can they consider this a form of compensation? Other than you get the book.

Great post Marie. It was nice to read a legal opin...

2009-10-08T22:36:22.305-04:00

Great post Marie. It was nice to read a legal opinion.

Thank you, Marie, for the fascinating post. Thank ...

2009-10-08T15:24:43.342-04:00

Thank you, Marie, for the fascinating post. Thank you, Jeffrey for the great post!

J.T. -- A blogger is most likely to come to the a...

2009-10-07T21:24:50.713-04:00

J.T. --

A blogger is most likely to come to the attention of the FTC as follows:

1) The FTC decides for whatever reason to investigate a manufacturer or advertiser who is supplying free products to bloggers.

2) As part of that investigation, the FTC demands a list of all bloggers who have received the products.

3) The FTC tasks some intern to go check the sites of the bloggers in question to see if they're including the necessary disclosures on the manufacturer/advertiser's products.

4) The FTC fires off cease and desist letters to those bloggers who are non-compliant, telling them that they have to comply with the Guides.

When a blogger gets to step four, they're pretty clearly in the agency's cross-hairs; refusal to comply would be at the blogger's own risk.

This is not to say that the FTC could not, for some reason, decide to go after a blogger out of the blue; however, that would not be consistent with how the agency generally operates.

Jeff

An interesting post...thanks for the explanation. ...

2009-10-07T18:08:17.312-04:00

An interesting post...thanks for the explanation. But what if I just tell the FTC to STFU? I mean, can they really enforce this?

This is a really informative and interesting post....

2009-10-07T17:03:18.809-04:00

This is a really informative and interesting post. I am glad to have some of these issues cleared up for me. I think the best thing for me to do will be to consistently disclose my sources from now on. Although I do agree with Bermudaonion's opinion that this is a ridiculous thing for the government to be focused on with everything else that's going on right now.

Marie and Mr. BB you are the best for sharing with...

2009-10-07T16:51:37.511-04:00

Marie and Mr. BB you are the best for sharing with us some legal knowledge on the subject. I've found this post (and the comments to it) quite useful. All I know is that I'll be stating where my books come from in each review and suspect that will be enough to be compliant.

Wendy -- My example of a publisher perkfest was, ...

2009-10-07T14:33:51.364-04:00

Wendy --

My example of a publisher perkfest was, to a certain extent, tongue-in-cheek. Do the concerns the FTC has with respect to online consumer product marketing really extend to the publishing industry? Probably not at present, or (for that matter) in the reasonably foreseeable future. But the FTC is clearly preserving its ability to take action if such a thing were ever to occur.

As for a blogger saying that they provide honest reviews, in a perfect world that would be enough. However, the FTC has had plenty of experience with people claiming to be honest who turned out not to be, and so the agency views such statements with skepticism. (DISCLAIMER: PLEASE NOTE THAT I AM NOT SPEAKING ABOUT YOU PERSONALLY -- INDEED, TO BE CLEAR, I AM NOT GIVING ADVICE RELATING TO ANY SPECIFIC BLOG OR BLOGGER.) Also, the fact that a blogger publishes both good and bad reviews of books received for free would certainly suggest a lack of bias -- but I can imagine the FTC arguing that, for readers to see that lack of bias, they would need to know which books were received for free.

As for the vagueness of the regulation, the law tends to assume that people have an inherent understanding of what "conspicuous" means, and (more to the point) what "inconspicuous" means. If a blogger tries to hide the disclosure, that's obviously going the wrong direction. Further guidance will need to await the FTC applying the Guides in specific situations.

It could indeed be frustrating for honest bloggers who want to comply with the rules, and aren't sure how. The bottom line, though, is that if a blogger tries in good faith to comply, they are unlikely to get in trouble.

Jeff

Jeff, thank you for addressing my response. I do h...

2009-10-07T14:02:45.235-04:00

Jeff, thank you for addressing my response. I do have to say however, your comment: But if it turns out that a publisher has been blasting people with perks to churn out good reviews regardless of the content, the FTC as part of an investigation might well ask bloggers if they've actually read the books at issue. made me laugh out loud. I know I am not getting blasted with perks...I don't think ANY book blogger is getting blasted with perks. The truth is that by the time I actually read a book, and spend the time to review it...any "perk" I've gotten from getting a "free" book is long gone. The time it takes negates any material value the book might have.

One question: I have a book review policy whereby I state VERY CLEARLY that I give HONEST reviews and if I don't like the book I say so. Wouldn't that policy make it clear to the FTC that I am an ethical blogger?? I must admit the vagueness of the guidelines is disconcerting. You say it is so people don't find the loopholes, but it provides little protection to bloggers to not really know the rules of the game...how can one follow the "law" if the law has never been stated?

Melissa -- Amen. A blogger who reviews artistic ...

2009-10-07T13:49:09.441-04:00

Melissa --

Amen. A blogger who reviews artistic works develops a meaningful reputation by expressing a subjective judgment that is consistent with their readers' taste. That is very different from an endorsement of appliances or other consumer goods where subjective taste is mostly irrelevant.

In other words, book/movie bloggers need to earn their reputations, and will quickly lose followers if they suck up and sell out. At that point, the deceptive effect of their reviews is basically non-existent. The system is, to my mind, self-correcting.

There is of course the possibility of a sudden and dramatic betrayal by a trusted blogger who all of a sudden turns corporate lackey -- but I don't that a galley is enough to make that happen, do you?

I agree with your suggestion: the best thing to do is let the FTC know how you feel.

Jeff

Wendy and Wordlily -- Not to suggest that this m...

2009-10-07T13:37:48.504-04:00

Wendy and Wordlily --

Not to suggest that this makes the Guides any more palatable, but I don't read them to require a specific disclosure of the person from whom you obtained a review copy -- only a statement that you were provided with a free copy of the book.

And you are right that the FTC probably won't be spying on you to see if you've read an entire book. But if it turns out that a publisher has been blasting people with perks to churn out good reviews regardless of the content, the FTC as part of an investigation might well ask bloggers if they've actually read the books at issue.

As for what a conspicuous disclosure involves, the Guides leave that open to case-by-case judgment. This is not a situation like tobacco packaging, with defined label sizes and language. Rather, "conspicuous" means that the disclosure must be obvious enough under the circumstances so that a reasonable reader/viewer would see the disclosure and understand it to dispel any contrary belief that they might have otherwise formed.

Could it be clearer? Absolutely. Unfortunately, whenever more specific rules are provided on issues like this, there will always be someone out there trying to find loopholes because the rules have been drawn too narrowly. The FTC and other lawmakers have learned that setting forth general rules which are applied case-by-case is the best way to avoid that problem. This does, however, result in situations of uncertainty like those you are raising. It's one of the central tensions in drafting legislation, and it's rarely resolved to everyone's satisfaction.

Jeff