March 9, 2010
The Federal Trade Commission raised quite a stink a few months ago when it released its new guides governing endorsements and testimonials, which the commission itself said would “affect testimonial advertisements, bloggers [and] celebrity endorsements.”
I’m co-presenting at the next Minnesota Interactive Marketing Association event, a discussion about ethics around social media marketing. As you might imagine, this broad topic of endorsements and disclosure looms large. My wingman for this gig — Michael Fleming, a bright lawyer from Larkin Hoffman — sees a lot of people who are confused on the matter.
That confusion starts with people, like the writer of the TechDirt post I linked to above and so many others (myself included), mistaking the guides from the FTC as new “rules” or “laws” regulating marketing and advertising. I’m sure the FTC’s use of the word “governing” didn’t help the matter, but Fleming points out the FTC has issued guidelines, not regulations.
If you get taken to court, accused of not properly disclosing a financial relationship with a blogger, the FTC’s guidelines will be one of many factors the court would consider. That’s it. (I’ll leave it at that because I’m not a lawyer and I am more interested in getting to my point than in executing an exhaustive and precise legal discussion. But I welcome clarification or elaboration from Fleming or anyone else who knows more about the subject.)
Of course, those guidelines will have a fair amount of weight in court — more weight than you and your Twitter friends — but they’re not the same as laws. That revelation was a relief to me, as a marketer. I don’t envision a situation in which I’m likely to fall on the wrong side of these FTC guides, but it’s damn good to know that, beyond the questions these guides raise, there’s room for reason and, I presume, a chance to defend those who have acted in good faith. As Fleming told me, the courts will be the ultimate arbiter on matters of what’s right and wrong here, not the FTC, and marketers have some room to learn more and make a case before the legal hammer comes crashing down on anyone.
I told you all of that mumbo-jumbo to tell you this: There’s a lot of trail left to blaze in the world of blogger relations, endorsements, product sample-sending and the like, and it’s going to be a while before we have some case law and some case studies to provide direction more concrete than “use your best judgment.”
…Tiffany Romero [is] co-founder of Secret is in the Sauce, a community of 5,000 female bloggers. Romero recently told attendees at a conference to let PR firms know that they don’t work for free.”Your time and your experience and your audience are worth something…It’s capitalism, plain and simple,” she said. The gist: we expect to be rewarded when we write about your product or company. Whether or not disclosure is a part of the exchange, the comments are an alarming recommendation.
I don’t consider it alarming. I consider it insightful. When conducting media or blogger outreach, a marketer’s job is not to “get the client free coverage.” The job is to understand what makes a reporter, blogger, editor, producer or whomever tick, to know how you can help her do her job, and to know how her interests align with those of your client.
Sometimes we work with people whose job is to report news and interesting developments in an industry and meeting a deadline or filling some column inches. Sometimes that job — or maybe it’s a “job” — is sharing stuff that’s intriguing on a much more personal level for the writer and, with any luck, feeding a family in the process. In the latter case, there’s no reason to be alarmed by the idea of bloggers desiring to make money.
If they refuse to make the appropriate disclosures, don’t work with them. If you’re not comfortable with money changing hands, you’ll have little trouble finding other bloggers to work with — assuming you have information worthy of their attention. There’s no need for any sort of James Bond stuff, sneaking around in the dark with some shady characters. And if openly disclosed pay-per-post coverage is something you’re interested in, go for it. It sounds like Tiffany Romero has some friends you can talk to.