Bloggers Are In For Some Federal Entanglement

The AP’s Deborah Yao explains:

The Federal Trade Commission will try to regulate blogging for the first time, requiring writers on the Web to clearly disclose any freebies or payments they get from companies for reviewing their products.

The FTC said Monday its commissioners voted 4-0 to approve the final Web guidelines, which had been expected. Violating the rules, which take effect Dec. 1, could bring fines up to $11,000 per violation. Bloggers or advertisers also could face injunctions and be ordered to reimburse consumers for financial losses stemming from inappropriate product reviews.

I’ve done a few product reviews—mostly books—and I’ve been thinking about doing more, but that $11,000 fine sounds scary. That’s more than all the money I’ve made off this blog in the entire seven years I’ve been writing it. I wonder what sort of disclaimer I’ll have to include to avoid a disasterous fine?

The commission stopped short of specifying how bloggers must disclose conflicts of interest. Rich Cleland, assistant director of the FTC’s advertising practices division, said the disclosure must be “clear and conspicuous,” no matter what form it will take.

Aw, come on! What does that mean? Is it enough to say “I got a free copy of this book to review”? Should I boldface it? Put a box around it? When they tell us to obey the rules, it would sure help if they’d actually tell us what the rules are.

The FTC’s proposal made many bloggers anxious. They said the scrutiny would make them nervous about posting even innocent comments.

To placate such fears, Cleland said the FTC will more likely go after an advertiser instead of a blogger for violations. The exception would be a blogger who runs a “substantial” operation that violates FTC rules and already received a warning, he said.

So if I review some product and forget to disclose that I got it for free, the best case is that the FTC will go after the advertiser who, having no control over what I disclose, is totally blameless. The worst case is that some FTC bureaucrat will decide my blog is “substantial,” which I’m going to guess is not actually defined in the guidelines.

It has always pissed me off how much Congress delegates their legislative authority to regulatory bodies. Rather than spell out the law and the consequences so that we can understand them, Congress all too often simply empowers some agency to work out the rules and the punishments.

Then, as in this case, by not spelling out the details of the required disclosure or the criteria for enforcement, the directors of the regulatory agency punts the decisions about the details into the hands of some future bureaucrats. In the worst case, what a blogger can or cannot do will depend on a series rulings and court cases instead of some clearly defined statute.

Well, that’s not quite the worst case, as Patrick at Popehat illustrates:

Define “substantial,” in plain English, please.  And also, define how the guidelines will punish those who file frivolous FTC complaints against a blogger for reasons that have nothing to do with advertising. “Hey, this guy sure does criticize the government a lot. I wonder whether he’s getting free stuff from Amazon?”

Exactly, although I doubt they’d take on someone like Glenn Reynolds. He’s far too mainstream. I think they’ll use this as an excuse to attack what they’ve always attacked: Things that are, by some politicaly useful definition, sinful. If these guidelines go into effect, it won’t be very long before they hit sites that review pornography, tobacco, alcohol, and guns.