December 2009 • Volume 97 • Number 12 • Page 598
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Bloggers - endorse with care
The FTC has issued new guidelines governing product endorsements by bloggers.
Lawyers aren't the only targets of new regulations issued by the Federal Trade Commission. In "Bloggers Beware," published in the July 2009 issue of ISBA's The Corporate Lawyer and the August 2009 issue of the newsletter of ISBA's Standing Committee on Legal Technology, Adam Snukal, editor in chief of AdLaw By Request, an advertising law blog published by the law firm reed Smith LLP, writes of the Federal Trade Commission's latest revision of its Guides Concerning the Use of Endorsements and Testimonials in Advertising, found at 16 CFr Part 255. Lawyers who blog, and lawyers with clients who blog, should familiarize themselves with the Guides.
Focus on advertisers
As Snukal notes, the FTC's revision specifically includes new media, including blogs and message boards, which did not exist 30 years ago, when it last revised its Guides. He begins by quoting the FTC's definition of "endorsement" from its Guides: "[A]n endorsement means any advertising message... 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." 16 CFr section 255.0(b).
The term "endorsement" includes testimonials, and the regulations state that the FTC will treat endorsements and testimonials equally in enforcement actions. Endorsements may include blog reviews and, in order not to run afoul of the FTC, must not be decep tive, Snukal notes.
Snukal says blogger liability for false endorsements may occur in two contexts: blog reviews and payments, including free products, made to bloggers from advertisers. Because the FTC may deem bloggers who review particular products to be endorsers, Snukal says, bloggers must verify or request verification of advertisers' substantiation with regard to any product claims.
Bloggers must also take care to disclose any payments made to them by advertisers, whether cash or free or discounted goods, he says. "The objective, simply put, is to convey transparency to the consumer."
Since Snukal's article was published, the FTC has issued further clarification of its revised Guides, which were effective December 1, 2009. That document, which includes the revised Guides as well as a summary and discussion of the comments it received and an explanation of the changes made, is available in an 81-page document.
Notably, the FTC has stated at page 9 of that publication that blog reviews will not necessarily be deemed to be "endorsements," even if the blogger has received a single, unsolicited item from a manufacturer and written about it positively, if there is no course of dealing with that manufacturer that would suggest a paid advertising message.
Additionally, Mary Engle, associate director for advertising practices at the FTC, said in October that the FTC was not planning on targeting individual blogger-endorsers but intends to focus on advertisers. Good practice as well as Internet etiquette, however, suggests that bloggers discussing commercially available products should disclose whether they have received anything of even nominal value or have any financial interest in the product's or manufacturer's success.
Other risky cyberbehavior
Along with government regulation, as blogging and other social networking applications have become more mainstream than not, liability for their misuse has become inevitable.
A former Winnebago County public defender not only lost her job but also is facing an ArDC complaint for having allegedly disclosed personally identifying information about clients and judges before whom she appeared. A New Jersey law firm has sued one of its former associates, whom it terminated in 2004, for unfair competition, breach of the duty of loyalty, cybersquatting, and trademark infringement based on his gripe site's postings and domain name, which is the name of the firm followed by the .net suffix.
Also, a Chicago landlord sued one of its tenants who used her Twitter account to tweet about her "moldy" apartment. And a University of Miami professor of constitutional law filed, and quickly voluntarily dismissed, a pro se lawsuit in federal court against the Above The Law online legal tabloid for its two-year-old posts poking fun at his arrest for allegedly offering an undercover police officer posing as a prostitute $20 for sex.
AdLaw By Request's site includes a search engine and organizes its posts on blogging at http://www.adlawbyre-quest.com/tags/blogging/. Information on the other actions referenced is available at https://www.iardc.org/rd_database/disc_decisions_detail.asp (ArDC complaint against former public defender and blogger), http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1202435298797 (New Jersey law firm suit), http://www.copyblogger.com/horizon-realty-group/ (article and commentary on Chicago landlord's lawsuit for tenant's tweet), and http://abovethelaw.com/2009/11/breaking_jones_v_minkin_dismis.php (University of Miami law professor's suit against Above The Law).