The unethics of the FTC regulation

Here’s the thing: Book bloggers can avoid the FTC regulation by disclosing any and all relationships. Authors cannot. And this is what you have to recognize, as an author: The new FTC regulation says that if a reviewer does not disclose a relationship, both the reviewer and the author are liable:

The Commission recognizes that because the advertiser does not disseminate the endorsements made using these new consumer-generated media, it does not have complete control over the contents of those statements. Nonetheless, if the advertiser initiated the process that led to these endorsements being made – e.g., by providing products to well-known bloggers or to endorsers enrolled in word of mouth marketing programs – it potentially is liable for misleading statements made by those consumers.
Imposing liability in these circumstances hinges on the determination that the advertiser chose to sponsor the consumer-generated content such that it has established an endorser- sponsor relationship. It is foreseeable that an endorser may exaggerate the benefits of a free product or fail to disclose a material relationship where one exists. In employing this means of marketing, the advertiser has assumed the risk that an endorser may fail to disclose a material connection or misrepresent a product, and the potential liability that accompanies that risk. It is foreseeable that an endorser may exaggerate the benefits of a free product or fail to disclose a material relationship where one exists. In employing this means of marketing, the advertiser has assumed the risk that an endorser may fail to disclose a material connection or misrepresent a product, and the potential liability that accompanies that risk. (p. 15)

So what do those terms “advertiser,” “sponsorship,” and “endorsement” mean? For purposes of providing review copies, “advertiser” means “person who gives out merchandise” generally, to someone who reviews–so that could include me, the author, handing out free copies of my reviews, to someone who reviews the books:

[A] blogger could receive merchandise from a marketer with a request to review it, but with no compensation paid other than the value of the product itself…. If that blogger frequently receives products from manufacturers because he or she is known to have wide readership within a particular demographic group that is the manufacturers’ target market, the blogger’s statements are likely to be deemed to be “endorsements,” as are postings by participants in network marketing programs. (p. 10)

Okay. So if I send my book to a reviewer that I know, they have to disclose, and if the reviewer fails to disclose, I can be held liable if (a) they fail to disclose their relationship, or (b) they make claims about my book that may not be true (“Courtney Milan’s book is the perfect cure for a blue day!”–this statement has not been evaluated by the FDA for accuracy. Admittedly, a book is neither a food nor drug, unless taken internally, which I do not advise.)

What can I do to avoid liability? The FTC explains that I can police the relationship by asking bloggers to disclose, or I can tell them to edit their reviews.  In other words, the only way I can avoid liability is to tell book bloggers what to write.

Sorry, FTC. That goes against the grain.  That really is, in my mind, unethical, and I’m not going to do it. It is not my job as an author to tell anyone what to write.  Now, if the person chooses to disclose our relationship, or that they got the book for free, that is totally fine with me.  But I find it personally offensive that I should have to tell a person what to say in a review, or on their website.  That is the opposite of ethical behavior on the part of an author, and I won’t participate.  Now, telling a reviewer what to say vis-a-vis disclosure is not as bad as telling a reviewer what kind of review to provide (which is heinous). But it still sticks in my craw as a bright line that should not be crossed.

So I am not going to follow that regulation.  Sorry.  I am not going to tell people what to write in their reviews.  And quite frankly, I think the contributory liability portion of the FTC’s regulation, as it applies to bloggers, is unenforceable under 47 U.S.C. 230, which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

I don’t advise that anyone reading this should take any of this as legal advice–it is not–or that you follow my example–because I am opening myself up to liability.  But the alternative seems to my mind to be unethical, and so them’s the breaks.

(All citations are to a PDF which has been since wiped from the FTC’s site, for reasons unknown to man or mouse.)

Edit: the PDF is back, here. They deleted the word “to” and changed the word “setting” to “settings.”  Nothing substantial.