More Problems With The FTC's New Disclosure Rules: Free Speech And Liability Problems
from the disclose-everything dept
I’ve already noted my general problems the FTC’s new disclosure rules, but as others look into the details, the worse they seem and the more you realize the unintended consequences may be pretty bad. Jeff Jarvis makes some key points concerning how this could be seen as a restriction on free speech. And that’s because the FTC seems to be viewing blog posts as if they are media, rather than straightforward communication. As we’ve pointed out in the past, for many, blogging is often no different than a conversation. It’s not journalism. It’s not reporting. It’s having a discussion with people:
Second, the FTC assumes — as media people do — that the internet is a medium. It’s not. It’s a place where people talk. Most people who blog, as Pew found in a survey a few years ago, don’t think they are doing anything remotely connected to journalism. I imagine that virtually no one on Facebook thinks they’re making media. They’re connecting. They’re talking. So for the FTC to go after bloggers and social media — as they explicitly do — is the same as sending a government goon into Denny’s to listen to the conversations in the corner booth and demand that you disclose that your Uncle Vinnie owns the pizzeria whose product you just endorsed.
As such, you could make a case that the new rules are an unconstitutional law hindering First Amendment guarantees on freedom of speech. As I noted originally, it seems like these things get sorted out in the marketplace of ideas — whereby those who do something so stupid as to sell their “views” on things face the potential of a substantial loss in credibility. But suddenly demanding people reveal the sourcing of some product they mention in blogs leads to all sorts of silly results, amusingly mocked by Mark Cuban in a blog post, where he wonders what sorts of disclosures he’ll have to make if he mentions a breakfast at IHOP where the managers comps the breakfast. And while he’s mocking the overall situation, it’s not so silly. You shouldn’t have to confer with your lawyers to figure out how you mention any particular product, just because you got a freebie or a sample somewhere.
And, what’s really scary? It appears that even the FTC isn’t sure what the policy actually means, and hasn’t thought through any of the unintended consequences or fuzzy borders.
Separately, Eric Goldman highlights another massive problem with the new guidelines that no one else seems to have picked up on yet: that in some cases it’s the company providing the product that will be liable — ridiculously blaming the company if a blogger makes claims about its products that are not true. As Goldman points out, there’s no way the FTC would be successful in going after companies for that, as Section 230 clearly would protect the advertiser from bogus statements by someone else. But, even assuming that the FTC never considered the Section 230 issues, why would the FTC ever think it’s reasonable to fine an advertiser for statements made by someone else?
Despite tons of feedback and discussion when the FTC first proposed these new rules a few months ago, it really feels like no one at the FTC put much time into actually thinking through what these sorts of rules would actually mean in the real world.