More Fallout from the FTC's Proposed Blog Guidelines

A little over a week ago, the Federal Trade Commission announced new guidelines requiring bloggers to disclose gifts or promotional items from companies they write about. Failure to do so might even result in fines, which would mean far from getting a freebie, a junketeering blogger might end up paying a huge price for their swag.

Yesterday, the Interactive Advertising Bureau (IAB) released an Open Letter calling for the FTC to "withdraw" its guidelines, calling them "constitutionally dubious." (This comes via paidContent's David Kaplan.)

Randall Rothenberg, president and CEO of the IAB, says in the open letter (posted in full on the Huffington Post), "What concerns us the most in these revisions is that the Internet, the cheapest, most widely accessible communications medium ever invented, would have less freedom than other media… These revisions are punitive to the online world and unfairly distinguish between the same speech, based on the medium in which it is delivered."

Rothenberg cites reviewer's copies of books—a standard promotional item sent out to hundreds of reviewers, editors, and pretty much any journalist who asks for them—as an example of an incidental freebie that either ends up on the journalist's shelf or, often times, sold to a used bookstore. Surely a free book given to a reviewer doesn't buy an endorsement, right?

Probably not, but newspapers (and some magazines) have guidelines about freebies like that. The New York Times, where Rothenberg was a reporter, has an Ethics in Journalism guide that explains to its staff, "Staff members and those on assignment for us may not accept anything that could be construed as a payment for favorable coverage or for avoiding unfavorable coverage. They may not accept gifts, tickets, discounts, reimbursements or other benefits from individuals or organizations covered (or likely to be covered) by their newsroom. Gifts should be returned with a polite explanation; perishable gifts may instead be given to charity, also with a note to the donor. In either case the objective of the note is, in all politeness, to discourage future gifts."

It seems unlikely an individual blogger would think that way. In yesterday's Times 'Style' section, Kayleen Schaefer talked to some fashion bloggers to see how the FTC rules might impact them. Schaefer cites the example of Britt Aboutaleb, a blogger for Fashionista.com who wrote all about getting fitted for a pair of Gap jeans by the company's lead designer but didn't quite make it clear to her readers that the jeans were a gift. “How is it less than crystal clear that I went intending to walk away with gifted jeans?" Aboutaleb responded to her critics. "Must I put FREE in the title?” No, but somewhere in the post would be nice.

Then there's this example from the same article: "Carolyn Hsu, the managing editor of The Daily Obsession, said she gets fewer gifts than the print editors she knows, and in March went to a fashion event where the print editors were given a designer bag as a gift but bloggers were not. 'There was quite a bit of Twitter outrage,' she said." (Outrage from whom—and for what? That a bunch of print editors got the gifts? Or that bloggers didn't?)

Perhaps the most interesting thing about the FTC's proposed guidelines comes from IndieWire's Anne Thompson, who looked at the regulations through the experiences of film writers—and sometimes critics—who are treated to junkets in exotic locales in exchange for publicity for studio releases.

Recent examples include Universal Pictures sending a plane-load of film writers to Bora Bora to promote Couple's Retreat and Fox Searchlight sending others to London for Fantastic Mr. Fox. And while the resulting coverage isn't always positive—putting a bunch of journalists on an island and feeding them doesn't automatically make them happy or favorably disposed to your product—it does sort of make their work (positive or negative) appear to be an extension of the studio's marketing efforts. A simple screening—or a couple of danishes and coffee in the lobby of a local hotel as reporters wait for their turn at a ten-minute interview with a star or director—wouldn't create that impression. (And it's not just movie studios: In June 2008, one New York-based Web site sent a plane-load of bloggers to Las Vegas.)

Thompson isn't so critical of the independent writers who take advantage of these trips—she rightly points out that they work "24/7" without the comfort or safety of a traditional news organization. But she sees these gifts a little differently: "I grew up in the film world as a journalist. Launching my first and second blogs at The Hollywood Reporter and then Variety, as I tested the waters as an old/new media hybrid, it made some of the old guard uncomfortable. It’s easier to follow the rules when you know what they are."

The FTC's guidelines may not be ideal, but by setting up some boundaries for bloggers, they do help clarify—and in some ways legitimize—what bloggers do. If what they do is write in order to get free things, they can still do that: They just have to put "FREE" somewhere in the piece.