Times that Try Men’s Souls: The FTC Moves to Regulate Blog Speech

Posted by Bill on Oct 6, 2009 in MeshBlog | 1 comment

The Federal Trade Commission has released new regulations will add a layer of difficulty for companies hoping to promote their products, services or point-of-view via blogs and other social media. As the New York Times reports, the FTC…

…said it would revise rules about endorsements and testimonials in advertising that had been in place since 1980. The new regulations are aimed at the rapidly shifting new-media world and how advertisers are using bloggers and social media sites like Facebook and Twitter to pitch their wares. The F.T.C. said that beginning on Dec. 1, bloggers who review products must disclose any connection with advertisers, including, in most cases, the receipt of free products and whether or not they were paid in any way by advertisers, as occurs frequently.

The regulations deserve to face a court challenge on First Amendment grounds, but until they do and are struck down, companies and organizations that want to pitch their products or services via the social media should implement procedures to help bloggers and other social media users to comply with the FTC regs.

It is unclear how the FTC’s new regulations will affect political bloggers, who often accept “free” access to candidates and political events that they are writing about, or companies which are using the social media to promote a point of view or message rather than a commercial product or service, though Mesh Media Strategies is fairly confident that relevant case law would protect such communications from FTC meddling.

Transparency – the apparent intent of the FTC regulations – is a generally good principle for businesses and bloggers to follow, but there are times when it is legitimate for a company to prefer a measure of anonymity in its communications – especially when politics and government are involved. These days, for example, some health care-related businesses might fear the consequences of coming out publicly in opposition to the current administration’s push for centralizing control of health care in the hands of the federal government, yet still wish to try to influence the debate by working through third-party communicators such as independent bloggers. Or conservative Christian home-schoolers afraid of heavy-handed judges and public-school bureaucrats might prefer to write their blog posts regarding home-schooling, politics and such under a pseudonym.

That is – and should remain – their First Amendment right to do so, and such anonymous writing is a tradition older than the United States of America. In January of 1776, the ppolitical pamphlet Common Sense, urging for revolution and independence, was published anonymously. Only later was the identity of the author – Thomas Paine – revealed.