Since the FTC released it’s guidelines for blog reviewers, I’ve been trying to coalesce my reaction and explain why I’m so irritated. The reaction to this post will likely be that I’m arguing against transparency. I’m not. I’m quite in favor of it.
What I am against is whining.
Since the FTC guidelines were released, I’ve heard and read several versions of the following statement on many, many sites and from many people: “I think this is a great idea. I can’t understand why you’re disinclined towards transparency. Shame shame! I myself have been burned by bloggers not disclosing the source of the product they were reviewing!”
Abraham Lincoln wrote in 1842, “My old Father used to have a saying: If you make a bad bargain, hug it all the tighter.” Still true, but I’d say instead: “Put on your big girl panties, quit whining, and get over it.”
What the FTC is attempting to do is enforce a method of curation by mandating disclosure, and subjecting only a portion of the reviewers publishing currently to its guidelines. While the FTC guidelines make me all kinds of irritated, it’s the response and the questions of curation and double standards that really tick me off.
Whether trusted sources come from the bottom up or the top down is still up for debate. Chris Kimball wrote about this topic in the New York Times this past week, though he was talking about the demise of Gourmet and the rise of the online user-built database of recipes. Kimball is the founder of Cook’s Illustrated, and host of one of Hubby’s and my favorite cooking shows, “Cooks Country,” and its predecessor, “America’s Test Kitchen.” We also think he’s a sanctimonious douchenozzle, and very much assured of his own superiority. However, his company’s recipes are excellent. He writes:
The shuttering of Gourmet reminds us that in a click-or-die advertising marketplace, one ruled by a million instant pundits, where an anonymous Twitter comment might be seen to pack more resonance and useful content than an article that reflects a lifetime of experience, experts are not created from the top down but from the bottom up. They can no longer be coronated; their voices have to be deemed essential to the lives of their customers. That leaves, I think, little room for the thoughtful, considered editorial with which Gourmet delighted its readers for almost seven decades.
Key point: “their voices have to be deemed essential to the lives of their customers.”
By whom? By their readers, I presume.
Side note: Kimball’s recipes are the result of expertise on the part of the chefs in his kitchen team compiling an aggregate of recipes for a particular food, testing and then making their recommendation for the best one. But I didn’t start buying the Test Kitchen cookbooks until they consistently produced recipes I used over and over and therefore justified my expenditure. I had to verify that their tastes matched mine, and even now I read their magazines to look for specific names, knowing those cooks have similar preferences to mine. My point: they are curating, and I’m curating, but somehow the published curation by an expert, instead of the additional curation by the person using the recipe at hand, in Kimball’s perspective, is better. I disagree.
The evaluation and selection by the reader on her own subjective analysis makes much more sense to me, especially when I can comprehend their subjective rubric of the original critic.
This curation done by the reader is echoed in Jeff Bercovici’s examination of the FTC regulations at DailyFinance.com:
It may be there are some unsophisticated consumers out there who can’t tell genuine criticism from sponsored flackery and who have spent money on shoddy products because of it. So be it. The Constitution doesn’t empower the government to protect people from their own stupidity. It does, however, guarantee the right to free speech.
This concept was embraced the day the FTC released it’s 86 page recommendation on Twitter in 140 or less by Shannon Stacey:
Dear government: No amount of legislation can protect stupid people from themselves. Also, not your job.
Aside from the nebulous boundaries of the FTC guidelines, and the fact that they spend much of the document talking about high ticket items but make no provisions for the potential of a $11,000.00 fine potentially being leveled at a blogger who wrote about a $7.99 paperback, my biggest frustration has been the reaction that draws inaccurate parallels. By protesting the extremely broad scope and the nebulous limitations in price point, those against the guidelines are somehow trying to obfuscate their evil, nefarious agenda.
Let me be clear here: you are responsible for your decisions. When you decide to take a recommendation, and it doesn’t work out for you, you bear some to all of the responsibility. I refuse to have responsibility enforced against me because I can’t remember the provenance of a book I received bought borrowed or stole from the library when I was 15, and that lack of memory in some way colors the ethics and value of my review. In my interpretation, the FTC’s regulations are attempting to shift the responsibility off of the consumer, who needs to caveat her mother fucking emptor in a big damn hurry, and on to me, in what I see as a big slap to free speech.
The “thoughtful experience” Kimball writes about regarding Gourmet magazine applies to book bloggers as well. You, the user, the shopper, the reader, have to decide whether you think my or anyone else’s experience is meaningful to you. You are responsible for evaluating your sources and deciding what you are willing to pay for, whether it’s a book, a dvd player, a car or a freaking island. Whether you decide to trust Consumer Reports or a blogger who works at a car dealership and won’t reveal his name for fear of getting fired, YOU are responsible for vetting your sources as they influence your decisions. And I’ve said it before and I’ll say it again: I’m as full of shit as anybody.
What are you willing to pay for? Are you going to trust content you have to pay for online? Or do you prefer content that is free? And if it’s free, are you ok with knowing that the content that is free may be supported by a paid or unpaid writer producing that content?
As bloggers, our only currency is our credibility. To be a successful blogger, you need credibility, consistency, and authenticity. Hypothetically speaking, if a blogger you read regularly begins reviewing products that you didn’t think he or she could afford without saying how she ended up with a $600 stand mixer, would you be suspicious? If a blogger whose site you adore begins to reveal that the entire premise of her site is based on an outright lie, do you stop reading?
If you do your homework, which is to say, if you read a site consistently, or follow a particular reviewer consistently, you can get a sense of what tastes you have in common, and what things you disagree on. You get a sense of their rubric – in other words: what makes an A book for them, and what makes a big ol’ stankin’ F.
What makes me the most angry is that, for many people, myself included, that same credibility must be established for print reviewers as well: they have to demonstrate experience and expertise in order for people to trust that review. They may have a slight advantage because a major publication hired them, but if someone is serious about the product being reviewed, “Take my word for it, I work for The Giant Newspaper Times” is not credential enough. I’m not alone in that assessment, either.
Markos Moulitsas, better known as the Kos of “Daily Kos” weighed in on the FTC regulations and called them on their double standard of media disclosure:
And most people reading reviews expect that companies send out review copies. If I read a video game review site, I assume that video game companies send out review copies (and anyone who reads those sites know, not all games get good reviews). If I read a gadget site, I expect that gadget manufacturers sent review copies to those sites for review. If I read a car site, I assume that car companies loaned out cars (along with insurance) to the reviewers.And yes, if I read a book site, or political site discussing political books, I assume those sites received review copies.
Here’s what I don’t expect—that every writer at a newspaper or magazine gets paid to write. In fact, the smaller the publication, the less I expect that.
That right there is why the internet is my favorite place: the USER is her own gatekeeper. No one’s stopping you from blogging. No one is stopping you from writing. Therefore, no one is responsible for your decision to read or not to read, to buy or not to buy. You can read whatever you want – and regardless of the obscurity of your interest, I promise someone on the internet shares it. But you are responsible for determining whether to believe your source, particularly when you’re demonstrating your belief in that source with your wallet, whether it’s a $8 paperback or an $80,000.00 car.
Kimball writes in the Op-Ed piece:
To survive, those of us who believe that inexperience rarely leads to wisdom need to swim against the tide, better define our brands, prove our worth, ask to be paid for what we do, and refuse to climb aboard this ship of fools, the one where everyone has an equal voice.
Right back atcha, Chris. To survive, those of us who have worked for months or years to establish our credibility and have left a written archive of our experience need to swim against the tide, too, to continue to define our own brands without the masthead of a print publication above or beneath us, to prove our worth as sources who are not out to fleece consumers of their money or paid media outlets of their profits, and whether or not we are paid for what we do, we have an equal voice, with equal value and potential influence. We should not be subject to broad, unfair, and poorly defined guidelines that do not affect other media outlets but that do threaten consequences against everyone writing online reviews. When the FTC’s target represents only a small portion of the reviewers writing today and the guidelines meant to curb them threaten us all, there’s something seriously, hideously wrong.
@Theresa Stevens
There are a lot of murky questions in all of this, I agree, but I think this one is easy. The guidelines refer to products given for purpose of review. If the book was given away in a contest, it’s not covered.
You’re assuming what you set out to prove. The FTC guideline’s test for endorsement does not appear to be related to the First Amendment test for commercial speech. Under the First Amendment, we know that commercial speech is speech that proposes a commercial transaction.
The FTC’s tangled and vague “factors” for endorsement do not dovetail with that inquiry. Some of them—like whether there’s an agreement between the two—seem to be important. Others, however, are baffling The question of whether a blogger has received “products or services from the same or similar advertisers” in the past does not seem, in my mind, to have any bearing on the question of whether I am requesting that someone propose a commercial transaction on my behalf. Most importantly, the Guidelines simply fail to ask the most important question in commercial speech doctrine: Does the speech at issue propose a commercial transaction?
Reassurances that this won’t apply to book bloggers seem to be absolutely contrary to the text of the guidelines. Setting aside the complex (and vague) factor test, the FTC explains that there’s one thing they are pretty sure constitutes an endorsement:
Guidelines, at 10.
The Smart Bitches readership (smart women who like critical analysis and romance novels) is my target market. The Smart Bitches frequently receive romance novels for review. Thus, if I offer Sarah a copy of my debut novel, and she accepts it, the FTC has essentially said that their complex analysis of factors means that this is an endorsement relationship.
The idea that the FTC’s “endorsement” test meets the First Amendment strictures is completely wrong-headed, even if the endorsement test really got at the question of payment. For one, it’s simply not true that a sponsored endorsement must inherently be commercial speech, and I think it is least true when you are talking about books, which are protected speech in and of themselves.
Specifically: Suppose someone says they will give me $500 to go speak at a town hall, if I speak out against health care reform. It is my right to go to my town hall (to the extent that it is a public forum), and it’s my right to speak out against health care reform, even if I am getting paid to do so. Even if I am lying. (It does make me a douchebag, but hey, the Constitution doesn’t protect us from douchebags.) The mere fact of payment does not make speech commercial. The reason? The above speech doesn’t propose a commercial transaction.
Take it a step further. Suppose I can prove that Ann Coulter says all the things that she does for one reason and one reason only: because she thinks her shtick will sell books. Suppose I can prove it; I have letters that say so. Does this mean that the FTC can regulate the content of her books? Does this mean that they can ask her to rewrite them to conform with what she really thinks is true?
The answer, obviously, is no. Because you have the right to lie. You have the right to express opinions that are not your own. The fact that Ann Coulter is, in my hypothetical, engaging in political speech for money doesn’t make it commercial. The exchange of valuable consideration does not automatically taint speech and make it about commerce.
Suppose I paid people to read my book about health care reform and post about it online. Even if I do so blatantly—even if I write them a check, saying, “This is for talking up my book”—their speech is still part of a valuable debate about health care reform. It’s political speech. It’s also political speech with money tangled in, but hey.
And so, let’s get back to Smart Bitch Sarah. Yes, if I give her a copy of my book, I hope she’ll read it and review it. I would be very, very happy if she liked it. I don’t expect that she’ll do any of those things—that would be irrational. But I do hope it. And yes, I hope so in part because I think that if she likes it and says so, I will sell more books. But the reason I have that hope for the Smart Bitches is precisely because of the way they conduct their reviews. Positive or negative, you can’t get the political or the cultural out of their reviews. Look at Sarah’s glowing review of The Virgin Project. It’s a discussion of sexuality and initiation, of what it means to be human, and how dehumanizing—or how enlightening—sexual intercourse can be.
That is not commercial speech. And you know what? It wouldn’t even be commercial speech if they’d paid her for it.
Romance reviews touch on virginity, politics, about rape in romance, and the role of women as seen in history, and today. They talk about interracial romance, about disablity, and about the meaning of otherness. Sometimes, they shed light on black-footed ferrets. The implication that the mere delivery of a book to one party, or even the delivery of a payment to a party, renders the entirety of that speech “commercial,” is on its face crazy. Speech about books is rarely commercial, and yet nothing in the FTC Guidelines suggests that the question of “endorsement” should depend on the nature of the speech being endorsed.
Instead, the FTC Guidelines substantially, and silently, enlarge the commercial speech doctrine to the point where you could drive a truck through them. That’s a critical failing.
@Courtney Milan
You may be right on the First Amendment issues. As I stated above, I will be interested to see how a court rules should this issue arise.
I was incorrect in stating that an endorsement as defined by the FTC is therefore commercial speech. It would be more accurate to say that the FTC is regulating this speech because the FTC believes it is commercial speech. And based on my knowledge of this subject, I think if it is a true endorsement it is commercial speech (my personal opinion, which has been known to be wrong, but that doesn’t keep me from having it). As I think I admitted above, I am not an expert on the First Amendment and I think this is a very interesting question. (Of course I’m not a reviewer trying to figure out what to do, so I can enjoy my interesting questions with no risk).
As for the quoted statement about the blogger who regularly receives merchandise—you’re right that is in the FTC summary. The Guidelines themselves start on page 55, but page 10 is a part of the document in which the FTC is addressing questions that came up during the comment process. I’m sure you’ve read the whole paragraph, which purports to address certain situations that are “clear cut.” Yet notice that it is a qualified statement that concludes it is “likely” the positive statement would be viewed as an endorsement. (So non-positive reviews are certainly safe. How about a B- review that’s partly positive? I have no idea).
The previous sentence still talks about how the decision depends on “among other things, the value of the product . . .” Then the statement goes on to talk about the readership of the blog, etc.
Based on my reading of this statement in the context of the whole document, I still think that a book blogger who is reviewing books in the same way as the print media has done for years is not going to run afoul of these guidelines. Again, this is just my opinion, but I don’t see how anyone would actually view this as an endorsement arrangement that is confusing to consumers. Looking at all the factors it clearly is not an endorsement arrangement. And the fact that some situations that fall within this “clear cut” fact pattern may not in fact be an endorsement or a sponsorship is why the FTC used the word “likely” in this introduction to the Guidelines.
Again this is all my opinion and probably not worth the time it takes to read it. But I’ve enjoyed the discussion. (I like reading crazy legal stuff almost as much as I enjoy reading romance).
Well, I’m no First Amendment lawyer—I practice in antitrust and consumer protection—but I think the assertion that the Guidelines would impute a book reviewer’s inaccurate factual statement about a book to the publisher is a little bit of a stretch. In a world where the FTC had unlimited resources and time (and even in the Obama administration, they don’t, much to their dismay 🙂 ), they might get to deceptive statements by reviewers of products that could cause physical injury (e.g., car seats or something), but a reviewer’s statement that an author “had her head up her ass when she wrote this scene” isn’t likely to bring down the regulators, either on the blogger or the publisher.
I just like the part about how consumers trust magazines and newspapers, so those don’t need to disclose. The FTC kids are darn glad that this doc is finished, because now they can start working on their letters to Santa!
I can’t wait until the age of the “expert” is dead. True mastery of any subject leaves you emotionally where you started your journey: there is a lot you don’t know, and may never know about your subject, and you’re humble about it.
Personally I’m okay when someone tells me they have x number years working in a subject. What I want in almost every situation is someone who is effect and usually experience and learning gets me that.
On the other hand, any who comes to me as an “expert”, without discussing how effective they are, I tend to presume is just a snob. The Gourmet folks are perfect example of that.