The First Amendment right to freebies
The "evidence," flimsy though it is, is in a new Harvard Law Review article that says Federal Trade Commission guidelines instructing companies to disclose commercial relationships with bloggers are unconstitutional because they inhibit free speech.
The guidelines, released to much hoo-ha primarily from those who claimed they would be be regulated, basically were created to make commercial relationships transparent. You know the old "paid endorsements" line on late-night commercials? It's pretty much the same deal.
Except some bloggers didn't see it that way. They saw it as an infringement on their rights to receive gift packages from companies. Not to mention expense-paid trips to swank hotels where they served as "focus groups."
Note: Even companies know that focus groups "tell us what they think we want to hear" so don't think that label makes the gift trip sound more like work and less like a getaway.
The FTC guidelines didn't act to restrict that at all. They merely said that companies that wine, dine, supply or pay bloggers are creating advertising, which the FTC regulates. Therefore, those relationships must be made clear in any resulting blog posts. Also, the bloggers could be held liable for any claims made in their posts. Boy, that one should pretty much eliminate the "send me stuff and I'll copy and paste your press release" blog posts.
Not so fast, says Harvard Law. Blog posts are not the same as advertising, and unpaid bloggers should not fall under the guidelines.
Note 2: The article doesn't define "unpaid bloggers." Some would contend that bloggers are paid if they complete a five-page application to be a "brand ambassador," agree to let the company review all negative comments and receive free products to review. I'd be more inclined to call it indentured servitude, but either way there's a working relationship.
Ay, but if not for the freebies how's a poor blogger to write reviews on which consumers rely, Harvard Law objects.
Quite easily, actually. There's a little publication called "Consumer Reports" that's been doing it for decades. And you'll find 20 reviews on this site. Some good, some bad, some so-so. Only one was for a free product. After I didn't gush, copy or paste, for some reason companies quit contacting me. Hmm ...
Then comes the disclaimer disclaimer. They "have an 'inherently pejorative connotation' that reduces the effectiveness of the message, even if the speaker is acting in good faith," the law review article said.
Comically, this cite came from a case holding that the government can require a publisher to disclose consideration received in exchange for publishing an article
It's also not true. I've read many reviews on blogs, both before and after the guidelines went into effect Dec. 1. Those who disclose and do balanced reviews have a ton of credibility in my book. They're being upfront that they have a relationship with a company, yet at the same time they're offering honest opinions even though their posts are sometimes less than laudatory.
As for the others, well, I'd figured out their game even before they were forced to disclose. I felt really misled when I caught on, too. I had no idea people were tweeting about products because the deliveries kept flowing until I saw people tweeting requests for products to "review" because they thought their kids might like the toys.
It's disappointing to see the Harvard Law Review join in, though. The publication should have Stopped Wasting America's Time with the first six pages of the article. Its only really valid point amid the conjecture and opinion - yeah, I know that's what a law review is but some apparently don't - was on page seven.
"A blogger who does not wish to disclose receipt of free products may seem an unsympathetic case."
Copyright 2010 Debra Legg. All rights reserved.