What if I decide to provide a simple link to a bigger weblog, even if it's one I dislike, in the hope of generating attention from the blogger and therefore gain traffic to my own site? Is that illegal under the FTC's new guidelines?
Sounds implausible, doesn't it? But is it? Let's look at the text. Go to page 60, and look at Section 255.1 of the regulations.
For purposes of this part, an endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the endorser and may be an individual, group, or institution.
An "advertising message" is not defined in the regulations, so we'll take it broadly, as the FTC might. It's a message stating that you should use, buy, or consume a product. An "advertising message" applies only to endorsements of "products" which are defined as:
any product, service, company or industry.
For instance, the two largest blogging outfits of which I know are Pajamas Media and the Huffington Post. Each agglomerates smaller blogs of varying size and significance, and each is a "company," meaning a corporation. So if I "endorse" a Pajamas Media blog, or a Huffington Post blog, or for that matter Andrew Sullivan or Megan McArdle or The Daily Kos (I'll bet Moulitsas is incorporated), on this blog, I'm bringing myself under FTC jurisdiction. Moreover, all of these blogs are commercial enterprises. They do indeed sell a product: eyeballs and advertising dollars.
We're blogging for free, but McArdle isn't. She gets paid because her opinions bring eyeballs, and hopefully subscriptions and advertising revenue, to The Atlantic Monthly magazine. In both its web and paper formats.
Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser.
Let's say I "endorse" a big blogger dishonestly, and let's say I'm doing it in the hope of getting a return link as a sycophant parasite, and therefore drawing traffic to my own tiny blog, which will result in eyeballs viewing my (non-existent but this is for the sake of argument) Google Adsense or Amazon sidebar, which will send money my way.
For instance, to pick a big-league blogger I actually like a lot, let's say I hate Megan McArdle, but post something drawn in from her site, with the hope she'll notice and point it out with a return link:
Hat tip: The ever-invaluable Megan McArdle, whose blog I think you should read every day.
When I'm actually a hardcore libertarian who really thinks that McArdle sold out her principles when she endorsed Barack Obama, and hasn't been the same since she sold out her blog to join the East Coast media elite at the Atlantic. In fact, I despise Megan McArdle as an unprincipled sellout and scoundrel.
But I'm endorsing her, and the company she works for, dishonestly. And let's say she reads her traffic logs, and she's flattered because I suckered her. She return links, stating:
Gosh, that Patrick at Popehat wrote a really great post about whatever it was expanding on my post about that other thing. You should read it. Click here.
I get a flood of traffic from McArdle's readers, some of whom click on my Google Adsense ads, and I make money.
Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers [see § 255.5]. Endorsers also may be liable for statements made in the course of their endorsements.
McArdle, or more pertinently The Atlantic, in this sense, is an "advertiser." She's sent me valuable consideration, eyeballs and ad revenue, in return for my dishonest, deceitful of endorsement her crummy blog, which I don't really read or enjoy. The Atlantic is therefore subject to a fine from the FTC, as it is an advertiser and has provided valuable consideration for my dishonest endorsement. Because I linked to something one of its bloggers wrote.
Does that sound implausible? Yes it does. But is it based an honest and plausible reading of the Federal Trade Commission's regulations? Yes it is. "Advertising" is not defined by 15 U.S.C. 44, the definitions portion of the Federal Trade Commission Act, so we go with its dictionary definition. Here's one:
The activity of attracting public attention to a product or business, as by paid announcements in the print, broadcast, or electronic media.
If I "endorse" (praise) McArdle / The Atlantic dishonestly, and they return the favor by sending valuable traffic my way (a form of pay for many blogs), The Atlantic and I have run afoul of the Federal Trade Commission Act.
Now, does this sound ridiculous? Of course it does. Do I have a First Amendment right to say that Megan McArdle's blog is great even if I don't think it is? Yes I do. But could the FTC sue me for dishonestly praising and linking a commercial blogger? Wouldn't that be overbroad, and violative of the First Amendment?
Unlikely but it could under the regulations as drafted.
What do federal courts do about regulations that are overbroad and violative of the First Amendment? They strike them down as unconstitutional, which is precisely what's going to happen to the FTC's new advertising guidelines.
At least, I hope they will.