Comments on: Do LINKS Constitute A Violation Of Federal Trade Commission Regulations?

By: Weekly Web Watch 10/5/09 – 10/11/09 « EXECUTIVE WATCH

Weekly Web Watch 10/5/09 – 10/11/09 « EXECUTIVE WATCH — Mon, 12 Oct 2009 20:51:27 +0000

[...] The Federal Trade Commission issued a set of guidelines for bloggers and users of social media. The guidelines are ostensibly directed at viral marketers who try to ensure that blogs and social media sites give positive press; the rules, however, are written so broadly that any blog could run afoul of the regulations if they do not include an “adequate” notice that they are being compensated. An Arnold & Porter blog gives a summary of the regulations. Walter Olson notes the overbreadth. Slate’s Jack Shafer calls it a “mad power grab.” And Ken at Popehat warns that trying to pump up your page views could land you in the FTC’s crosshairs. [...]

By: Charles

Charles — Sun, 11 Oct 2009 03:17:03 +0000

Right, I get that, I suppose it is only a question of how we frame what we should be upset about. I think what we need to be upset about is a limitless authority to investigate; a fear that a link without any indicia of payola would be actually illegal is a bit too paranoid for me.

By: Patrick

Patrick — Sat, 10 Oct 2009 17:43:11 +0000

The FTC hasn't to date Charles. Read the regulations.

By: Charles

Charles — Sat, 10 Oct 2009 16:09:08 +0000

I don't know, Patrick. I don't think you've shown a material connection running from The Atlantic to Popehat. You knowingly duped McArdle into reading but McArdle didn't ask you to endorse, didn't give you anything for free (you paid with your pageview to read her article). Your endorsement of her wasn't solicited or sponsored. Likewise, she has no reason to believe that you are being insincere, when she read your AdSense sponsored article she paid the toll for access, and she directed her readers to an opinion without any transfer of boodle. You may be trolling for lucre, but you aren't trolling on her behalf or in exchange for anything, implicit or explicit. I'm not convinced that your actions fall under the provisions that you've quoted. Whether this regulation means that any endorsement, from a hat tip to a review to a naked link is subject to regulation because all positive comment is inherently suspect is a separate question, and doesn't require an elaborate hypothetical. There, the question is "does the FTC have any intention to announce limiting principles on their authority to investigate", such as a reasonable suspicion standard, and to the extent they are not (and they don't appear to be) then there is definite cause for concern.

By: FTC vs. bloggers, cont’d

FTC vs. bloggers, cont’d — Sat, 10 Oct 2009 04:01:12 +0000

[...] Patrick at Popehat identifies another sort of "endorsement" that might arguably be covered by the language of the [...]

By: Rick H.

Rick H. — Sat, 10 Oct 2009 00:53:03 +0000

Regarding that last paragraph: I feel you are overly optimistic.

By: Ken

Ken — Sat, 10 Oct 2009 00:50:38 +0000

Your interpretation is entirely consistent with the scope of the regulation. The FTC's snippy response to the complaints about this — quoted in the Overlawyered post you link — boil down to "trust us, we've never abused our discretion, and we're not about to start now." That's a lousy way to run a government, particularly when freedom of expression is at stake. The fact that the FTC has broad discretion that it will only exercise in some cases makes it worse, not better.