Monica Valentinelli: Author, Game Designer and Consultant

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1. 
   
   

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   October 6, 2009

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   Adam Dray said:

   
   

   Whether or not it is intended to affect you is irrelevant. The fact is, if you accept review copies and don’t disclose them or return them, you’re in violation of federal regulations.

   Worse, the regulations are unconstitutional. They fail the Equal Protection Clause because they treat bloggers differently than other people. They impose limits on Free Speech for one group of people without a compelling reason to do so. The FTC has insufficient justification to violate people’s First Amendment rights here.

   While I’m sure the FTC means well, they’re going about it all the wrong way. For example, there’s talk that they’ll expect one disclosure per tweet for Twitter reviewers. Seriously? The FTC has implemented a set of ham-handed rules on a technology they do not understand.

   It’s not as simple as “simply state where you bought it from.” Now that these review copies are considered compensation, do you have to claim them as income? This is all a slippery slope that encroaches on a number of our rights and we should tread carefully and probably get politically active.

2. 
   
   

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   October 6, 2009

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   Ken Marable said:

   
   

   Reading over the details (http://www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf), it appears pretty straightforward. I actually read through the 81 page government document (ug) because I was wondering what all the gnashing of teeth was about on several blogs.

   Bottom line as far as my reasoned (but non-lawyer) opinion is:

   a) Positive reviews from bloggers who regularly receive free products are considered “endorsements” and are covered by the guidelines,
   b) If you are giving a positive review a product you got for free, say so, and
   c) There is no C. That’s it.

   Seems straightforward to me. The traditional media vs. new media distinction violating equal protections/first amendment doesn’t really do it for me. (And I’m typically pretty gung ho in favor of protecting those rights.) They do specifically address it and although I disagree with their often phrasing things in terms of “traditional media” and “new media”/”consumer-driven media”, the point they *actually* make is that professional reviews, like say Ebert, are performing their duties as an employee of an independent editorial board as opposed to directly receiving a benefit on their own.

   So, it sure looks to me that if a similar situation existed but happened to be online rather than in print, the FTC would treat it like print media. The point they emphasize is the editorial independence, not the media it is presented in.

   Plus, it is encouraging to see a government regulation repeatedly rely on common sense and “what a consumer would likely think” rather than nasty, overly complex attempts at precise definitions that usually fail or are outdated right away.

   I think it will be interesting to see how this applies to Twitter in the future given the extremely small message size constraints. However, despite there being “talk” about what the FTc will do there is nothing in the new guidelines addressing Twitter at all. I think the FTC is still trying to catch up to 2002 or so, so I’m willing to wait and see how things pan out on a technology that didn’t even catch on until after they started drafting these guidelines.

   Having read through the actual details, I fail to see what the panic is all about. Basically, if you are a paid shill or are giving a positive review of a free product (no matter the size), then disclose it. Period.