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Are Bloggers Really On The FTC’s Radar?

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Book bloggers, including those who simply post reviews at Amazon, get blasted occasionally. Sometimes mainstream media reviewers assert that Internet-only reviewers simply "enjoy shooting off their mouths" and their work amounts to "the degradation of literary taste." Even some book bloggers themselves raise questions about whether there is an ethical obligation to disclose whether the book they reviewed was provided gratis by the publisher.

Now comes an online ad at Freelance Work Exchange posted by "kenwelsh." The ad, posted Monday, seeks five reviewers for three new (but unnamed) books to "write a 1-3 Paragraph review with a 5 star rating (5 being best) of each of the 3 books." The reviewers, who would get $5 to $10 per review, must "forward the reviews over to us so that we can look over them before you post them on Amazon.com and Barns and Noble.com [sic]." Although "ken" says this has the potential for "[l]ong term work," he also notes, "Unfortunately, Amazon has recently instituted a new procedure whereby you can only review books if you have an account that you have used to purchase books/products from them before, so in order to bid [for the jobs] you must have an account with Amazon that you have used to purchased [sic] books with them from [sic] before." In addition, reviewers must "know how to write english [sic] well."

Aside from asking someone to sell themselves out for a grand total of $15 to $30, the ad's timing wasn't the best either.  It came a week after the Federal Trade Commission released an opinion some in the Internet community view as a potential threat of federal regulation of bloggers and non-commercial websites. In the staff opinion letter, the FTC said it would take a "case-by-case" approach to determining if it will recommend "law enforcement actions" for certain "word of mouth marketing" efforts. Specifically, the FTC staff was looking at whether failing to disclose that someone marketing a product is paying a consumer to promote the product to other consumers violates federal law.

The letter stemmed from an October 2005 request by Commercial Alert that the FTC investigate companies that engage in what Commercial Alert called "buzz marketing." Specifically, Commercial Alert asserted it was a deceptive trade practice if those hired by buzz marketers failed to disclose they are being paid and by whom. It pointed to campaigns by such corporate giants as Sony Ericsson and Procter & Gamble.

The FTC staff avoided the "buzz marketing" term in its opinion. Instead, it looked at a specific type of what it called "amplified word of mouth marketing" – amplified in that marketing campaigns are used to encourage or accelerate the word of mouth. The FTC staff was concerned about "marketers paying a consumer (the 'sponsored consumer') to distribute a message to other consumers without disclosing the nature of the sponsored consumer's relationship with the marketer." It noted that FTC guidelines dealing with product endorsements look at whether the connection between the seller and endorser is one "not reasonably expected by the audience." It then pointed to hypothetical situations in which a cell phone user or dishwasher owner who raves to friends about the product doesn't disclose they are being paid by the marketer. The FTC staff said it appeared that failing to disclose that relationship would be deceptive under federal law "unless the relationship were otherwise clear from the context."

Although the FTC staff did not recommend formal action, it said that was not a determination that the actions of which Commercial Alert complained complied with federal law. Instead, the FTC will "continue to evaluate these issues" and consider taking law enforcement action on complaints "when appropriate." Some interpreted the opinion letter as an FTC edict that companies that engage in word of mouth marketing "must disclose those relationships." Commercial Alert, in contrast, did not think the FTC went that far, calling the opinion letter "a giant Christmas present" to word of mouth marketers.

Still, the letter has generated fears in the Internet community for a variety of reasons. For example, many bloggers, myself and Blogcritics included, are "affiliated" with various websites, such as Amazon. Purchases resulting from links on the blog earn a commission from four to eight percent from Amazon. Does that make the blogger "a sponsored consumer"? Or does the blogger fall in that classification only if an item linked on the blog is actually sold and produces a commission to that blogger? Does the failure to disclose that certain links on a blog might result in a payment to the blogger constitute a deceptive trade practice? Or is it sufficient that the link takes the reader to a commercial website enough?

Or how about online reviewers? Regardless of whether they are affiliated with commercial sites, some or perhaps all of the books, CDs or DVDs reviewed are provided without charge by the publishers, labels or PR firms. Does the fact the reviewer gets a free copy make them "a sponsored consumer"? While the FTC staff letter noted that some marketers provide "product samples" or other "incentives to disseminate a mesage," it does not specifically opine on what constitutes payment. And if a free copy of the work is payment, does praising the work mean there has been a deceptive trade practice if the reviewer doesn't disclose it was free? If so, does panning the work in whole or significant part eliminate any obligation to disclose as it evidently didn't disseminate the "right" message?

Much of the concern expressed on blogs and the Internet may well be an overreaction. The FTC said only that it would look at future complaints case by case. Even if the FTC wants to pursue or investigate "amplified word of mouth" campaigns involving sponsored consumers, it would likely be more interested in the large firms pushing those campaigns than the solitary blogger. Of course, Amazon and other large websites with affiliate programs might make attractive targets. Yet one would hope that the FTC would make its position clear before any widespread enforcement efforts occur. Finally, if the need arises or the blogger is sufficiently concerned, blogs and websites can easily add disclosure statements to avoid the failure to disclose element required for a deceptive practice.

Still, the timing of the ad by "kenwelsh" is somewhat akin to throwing gas on a fire that perhaps was about to smolder. If nothing else, it serves as another example for those who look to criticize online review sites. Given that the ad explicitly seeks to create a "word of mouth" campaign like the hypotheticals in the FTC opinion and the types of activities about which Commercial Alert was complaining, it and similar activities can only serve to bolster pushes for more government involvement in and regulation of the internet.

My suggestion? If the FTC wants to investigate abusive buzz marketing, I nominate "kenwelsh" to be the first one investigated. Not because of the timing of the ad but for the Faustian proposal it makes. 

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About Tim Gebhart

Tim Gebhart is a book addict living in Sioux Falls, S.D., where he practices law to provide shelter for his family, books and dogs.
  • http://handyfilm.blogspot.com handyguy

    It’s hard not to notice that relatively few of the book, music, and movie reviews here on BC are pans. I’m not casting aspersions on the writers’ sincerity, but occasionally there does seem to be a desire to ingratiate ourselves to the publishers and film companies. This may even be unconscious – or it may be how some young writers think they have to behave to become ‘successful.’

    [The comments, of course, are full of pans as well as various other forms of bile, mixed in with some insightful posts.]

    The “service” that wants to employ freelancers to post raves on Amazon is funny as well as appalling. It’s hard to imagine that this would ever actually accomplish anything for the marketers behind it, but who knows?

    When I saw the title of this piece, I thought it might be about John McCain’s recent disturbing bit of demagoguery, threatening to prosecute bloggers for promoting porn.

  • http://www.diablog.us Dave Nalle

    It’s hard not to notice that relatively few of the book, music, and movie reviews here on BC are pans.

    I don’t know for certain that this is the case, and I’m not that active as a reviewer these days, but I know that my experience has been that I tend to either write generally positive reviews or extremely negative reviews (far rarer) and nothing inbetween. If something is mediocre tending towards bad I just can’t bring myself to review it. It seems like such a waste of effort. And in many cases with a book or a movie I may not have even finished it and therefore don’t feel qualified to write a full review or motivated to go through the pain necessary to do so.

    It’s also possible that a lot of our reviews are self-generated, where someone read a book or saw a movie or used a product they just liked so much they had to write about it. Just a portion of the reviews originating that way is going to skew the overall tone positive.

    But I’m working on a review of the second season of Masters of Horror, so I’ll at least have one negative review in my portfolio.

    Dave

  • http://prairieprogressive.blogspot.com Tim Gebhart

    I don’t mean to pick on the author of the book but this review of mine seems timely both for handyguy’s question and the season.

  • http://www.sitekreator/crucible/index.html Howard Dratch

    Since no one ever sends me free books all the way down here in Mexico (except my in-laws who happen to have excellent taste); my favorite reviews have been books discovered in these care packages or actually ordered from Amazon with international shipping and the possibility of large customs taxes (or carried in my luggage back from Miami). Therefore it was the works I wanted or had happily discovered that were written about.

    On the other hand I have just finished a contemporary book translated from the Italian. It ended and, even though it was not intellectually challenging, I am confused about who was who who did what to whom. It may be the translation or it could be that I lost my concentration but it was hardly Virginia Woolf or Vladimir Nabokov so why do I have to re-read some of it to understand the ending? The question is whether I will bother to write about it or not. If I do the chances of a negative review are reasonably high.

    I am open to free books, computers, DVDs, light trucks …. Just make sure you put on enough postage and mark the customs tag “review copy – no value”.

  • http://midnightcafe.wordpress.com Mat Brewster

    I suspect that the average amateur blogger (which blogcritics mainly consists of) do tend to give a mostly positive review of items given to them for review. I wonder if some of that doesn’t stem from the idea that you shouldn’t complain about something given to you from free.

    On the rare occasion I am given something to review I know I struggle not looking hard to find something positive to say. There is a back and forth between reviewers and publishers of the material that makes it difficult to turn around and slam their product.

    Though I’d also agree with the other comm enters that the majority of the reviewed material around here and the entire blogosphere isn’t material given away by publishers, but items we have paid for ourselves and consumed. And we do tend to write about stuff we really like than all the mediocre crap that passes through our lives.

  • http://www.mondoirlando.com Duke De Mondo

    In my opinion, the fact that Blogcritics, for example, recieves material for review makes it no different whatsoever from any print-based magazine a fella might find lining the shelves of an evening. In no way can that be considered anywhere near to payola. Similarly, the amazon ads are adverts, which any magazine will carry. If there’s an ad for the new Gwen Stefani record in the latest NME for example, it doesn’t mean that the review of said record is going to be in any way skewed one way or the other (they gave it 2 out of 10, if i recall correctly). Similarly, one finds adverts for items at the bottom of many’s a blogcritics review in which said item is torn to jagged chards and left hanging o’er the digital wires for the hounds. any half-awake analysis of the site would reveal this to be the case, and so i think we’re safe, as far as these new murmurings are concerned.

    When it comes to individuals like our “kenwelsh” there, i think that IS morally wrong, and it tarnishes a whole slew of folks associated with such shenanigans through none more than the medium they utilise.

    Sadly, there appears to be some sort of umbrella being raised o’er the lot on account of individual tomfoolery. this is unpleasant.

    also, great article, Tim!

  • http://www.templestark.com Temple Stark

    I don’t know about morally wrong, but payment like this is wrong and nothing more than an ad agency contracting a copy writer on the cheap (very cheap). It is disgusting.

    It’s chump. Anyone should know that. A lot of companies with a proven track record of using the materials that get sent – for good or bad keep on getting them. you haveto show why you like or dislikeand that’s what makes your review useful.

    Books can be different, in that they take so long. It’s hard to actively search something out you’re not sure you’re going to like, when it takes a week minimum (unless unemployed, inactively retired, living in time-stops luxury etc.)to read the book and write the review.

    I wouldn’t ever read a site or a person who loves everything (or hates everything or thinks there opinion is the be all and end all) because there is no brain functioning where it matters.

  • http://www.morethings.com/log Al Barger

    If you think on it, it might seem surprising that Blogcritics publishes as many negative reviews as it does. Professional critics are being paid (by their newspaper or magazine) to write, and thus often have to write about whatever crappy new movie or CD gets assigned to them. Whereas, why would an amateur be motivated to bother writing about some half-assed record?

    Also, as Nalle points out, a big portion of BC reviews are not review copies, but stuff out of our personal collections, or perhaps stuff downloaded from the net. That would probably cover 3/4 of everything I’ve reviewed.

    Even the stuff that Blogcritics get as review copies from the publishers mostly would be expected to get positive reviews on that same point of being volunteer efforts. We’re not paid to write about stuff, so we’re going to ASK only for stuff we figure we’re going to dig.

    Really, these review copies aren’t “free” if you are committed to writing about them. You’re going to be investing several hours of your time over a $10 CD. Unless it was something that you are enthused to write about, it’d be cheaper to spend the $10. How much could you earn doing other things instead of spending, say, four hours writing and editing a review? A lot more than $10, most likely.

    Thus, as so often in life, “free” costs more than if you just bought the things. I for one am not going to commit to several hours of unpaid labor unless it’s something I figure I’m probably going to dig.

    In my experience, I tend to really WANT to say nice things about somebody’s album, particularly less well known people – unless it’s something that’s really particularly egregiously crass, pandering crap. It can be rewarding to give a nice, detailed smackdown to a Madonna or Mariah Carey record, though.

    It’s much more fun to be able to gush about how great a record is than to tell someone that this thing they’ve poured their heart into sucks. Most times, I’m having to discipline myself a bit to be critical enough.

    Finally, even besides wanting to be nice, I find it most rewarding to write positive reviews breaking down what’s so cool about a movie or record, showing insight into something worthwhile, and how it relates to other things that might be less than obvious. Whereas, it doesn’t take that much genius to say that this is just a crappy, generic blues record like a thousand others with no memorable hooks or unique artistic statement.

    Sometimes that’s the true and proper thing to say, but it’s just more rewarding to write about a great Prince album than about a stupid Celine Dion or Barbara Streisand turdball.