Why Brands Should Rethink Partnerships with Bloggers

The following is an article published today (June 2, 2009) in iMedia Connection on how bloggers and the brands they sometimes represent have been caught in the FTC's crosshairs. Here are a few specific examples that highlight just how convoluted this battle might become. The article was co-written by Emily Levin, a corporate IP and eCommerce attorney who did a terrific job of helping to break down the FTC's often confusing legalese. 

Some of you may have heard by now that the FTC is planning to implement "self-regulation" policies for bloggers and other social media influencers who are either paid to write on behalf of companies or as affiliates of those companies.

While the move seems restrictive, the reality is that as social animals, we do need rules. In fact, we would assert that by enforcing the virtues of transparency and authenticity, these types of policies are what will ultimately keep the net neutral. The challenge, then, is to help those in the blogosphere understand what exactly is being asked of them.

Co-author Emily Levin is a corporate attorney. 

The following is a constructive look at the FTC regulation of blogs and other social media. Since there is a clear disconnect between legal and creative license, these insights are told through the perspectives of a both a blogger and an attorney.

We'll examine modern examples provided by the FTC to illustrate its revised guidelines.

The question is, given the examples and the guidelines that the FTC derives there from, can the above-average blogger (let alone the everyday blogger) understand and conform their communications accordingly? And even if the blogger can't evaluate them from a legal or liability perspective, might they provide guidance and improvement nonetheless?

Let's explore.

FTC Example 5
A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser's products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog.

Although the advertiser does not make any specific claims about the lotion's ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition.

FTC Position: Advertiser and blogger are both responsible for blogger's (1) false or unsubstantiated statements and (2) failure to disclose clearly that she is being paid for her services.

Blogger Position: The FTC recommends that advertisers should train and monitor their bloggers, but will bloggers live in fear that their statements are not sufficiently substantiated and hold their tongues?

It seems that the most pre-emptive way to avoid the substantiation snafu is to qualify or preface any threads with a set of personal guidelines. While this may conflict with the more random nature of blog threads, it could establish etiquette that is top-of-mind. Further, this would engender a type of social responsibility that could be spread throughout the blogging community at large.

FTC Example 7
A college student who has earned a reputation as a video game expert maintains a personal blog where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software.

As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review.

FTC Position: The reader is unlikely to expect that the blogger received the game for free, and this would impact his review. The Blogger should clearly and conspicuously disclose that he received the gaming system free of charge.

Blogger Position: Should a blogger always have to disclose when they received a free sample? Would it matter whether a manufacturer a) targeted a particular blogger; b) sent samples to random video testers; c) gave samples to everyday people at a conference or d) handed samples out to people at a trade show? Would it matter whether the site was hosted by a) the manufacturer or b) a student?

This poses a curious and considerable debate over the free exchange of ideas, and cross-posting or cross-linking in particular. In other words, one man's roost is not necessarily another man's fodder. With respect to content, it seems necessary that the original blogger qualify the "spread" of information, and to the best of his abilities, credit those in his affiliate network of sites with the potential legitimacy of a product's credibility. From a product standpoint, it also seems fair to say that "neutral" links should be provided that show those product specs in an indifferent light. Ultimately, self-imposed qualifiers can help regulate within environments that have varying guidelines.

FTC Example 8
An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices.

Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer's product.

FTC Position: Unclear, but the implication is that there would be liability for nondisclosure by the employee. The Poster should clearly and conspicuously disclose her employment by the manufacturer to members and readers of the message board.

Blogger Position: If an employer has a blog, should they be required to have a social media policy? Should they be liable if they don't? What if the employee disobeys the social media policy, should the employer be liable then?

These scenarios are certainly not uncommon, and a social media policy does not preclude an employee from liability or great risk to his or her reputation as a blogger. The key here seems to be that both the employee and employer need to construct a shared risk arrangement in which proper editorial monitoring is conducted, along with structured milestones that include issue management guidelines. Again, full disclosure is paramount to not only building trust among community members, but also in helping to define corporate outreach policies that may still be nascent.

FTC Example 9
A young man signs up to be part of a street team program in which points are awarded each time a team member talks to his or her friends about a particular advertiser's products. Team members can then exchange their points for prizes, such as concert tickets or electronics.

FTC Position: The rewards program impacts the credibility of the endorsements. The rewards should be clearly and conspicuously disclosed, and the advertiser needs to make sure of this.

Blogger Position: How can the advertiser ensure the necessary disclosures are being made?

A company can't really play watchdog over conversations that occur in the street and expect its message to spread organically. However, if the incentive program includes very detailed milestones that reflect various potential outcomes by virtue of these conversations, then the risk is greatly mitigated. In other words, the milestones define the disclosure guidelines. The thinking here is that if a product garners enough attention through word of mouth, the conversation will inevitably change, and therefore the representative -- on behalf of the brand -- has ample opportunity to course-correct messaging and/or respective content positioning.

Conclusion
In all scenarios, a definable and adaptable sense of social responsibility is required to ensure the credibility and protection of all parties and products involved. And while the unpredictability of blog or social conversations can be a wonderful alternative to the more intrusive nature of advertising messages, we are still in the infancy stages of what this all means for brands, bloggers, and consumers alike. We must defer to good personal judgment and work together to establish parameters that allow for self-expression in ways that are positive and proactive.