On Reviews, ARCS, and Full Disclosure

by Sarah on October 5, 2009 · 54 comments

As of December 1st, the US Federal Trade Commission will require review bloggers to disclose any payment or freebies they receive in exchange for reviewing a particular product. In other words, book review bloggers will be obliged to mention whether or not a book was given to them by an author or publisher, or if they received any financial incentive to write the review.

I am not resident in the US, so the ruling can hardly apply to me. However, it raises the general question of reviewer integrity and full disclosure of potential conflicts of interest. Personally, I am all for transparency. I assume many of the review blogs and sites I visit receive advanced reading copies, but I would prefer this to be mentioned explicitly. Equally, special circumstances such as a personal or professional relationship with an author should be revealed, e.g.: if the reviewer is the author’s critique partner or BFF.

I visit many blogs and review sites. I gravitate towards those which I see as trustworthy, and this is a trust which has built over time. I don’t expect to agree with their assessment of every book reviewed, but I want to feel the opinion given is an honest one. I am not for a moment suggesting that it’s not possible to give an honest review of an ARC. But in the interests of transparency, and for inspiring trust in new visitors, I think mentioning that the book is an ARC is valid.

There’s a growing trend for review bloggers to regard themselves as more than hobbyists, with some accepting paid advertising. In their case, I think it’s especially important to be upfront about the source of the books they review and the giveaways they have on their blog.

Equally, I would apply the appeal for full disclosure to endorsements from fellow authors, be they in the form of cover quotes or books being pimped on their websites. I often see authors from the same publisher give each other cover quotes. Perhaps they truly loved the book, but to my mind it represents a clear conflict of interest. Most potential buyers do not know which authors know each other in real life, have the same agent, or are contracted with the same publisher.

Seeing as we’re discussing full disclosure, I should mention that all the books I have thus far reviewed on my blog are ones I bought myself or borrowed from friends. I have agreed to review two ARCs and I will mention this in their respective reviews.

Here are some links to further information on the new FTC rules:

http://www.ftc.gov/opa/2009/10/endortest.shtm

http://www.nytimes.com/aponline/2009/10/05/business/AP-US-TEC-Bloggers-FTC.html?_r=2 (Thanks to Magdalen for this link!)

What do you think of the new FTC ruling? Is it unfair to bloggers as it fails to include print publications such as Publishers Weekly? Would you prefer reviewers to mention the source of the books they review?

{ 53 comments }

Maili October 5, 2009 at 21:16

Good post. Yup, I fully agree with you on this.

Jane October 5, 2009 at 21:27

The FTC issue is not about whether transparency is good or bad. It’s about whether the rule, as extended and revised, promotes the goal of NOT misleading consumers. Dear Author has always been about transparency so it’s not the principle of the thing, it’s how the FTC is going about enforcing the principle.

The FTC guides have been in effect regarding endorsements since the 70s. The last time it was amended looks to be in the 70s. The language, if applied correctly, would still reach bloggers. The definition and examples now provided are so broad, that it will only serve to stifle speech. If I post over here as Jane about a book I enjoyed, I will have to disclose whether I bought or rec’d that book for free, ditto for my statements on Twitter or Facebook. I’ll never be able to remember that so I guess I’ll have to abstain from commenting ever about a book except on my blog in the review.

The provisions of the new revised guide also offer up contributory liability for any “advertiser” who receives an endorsement. If an author sends a book to a reviewer and the reviewer writes something untrue in the review, the author is on the hook.

The provisions of the new revised guide clearly reference positive reviews as being endorsements. Maybe if I just post negative, snarky comments with no Amazon buy links, I would satisfy the FTC guidelines.

Author endorsements, as Courtney Milan pointed out, would have already been covered under the existing Guides, but they aren’t enforced. Ever.

So FTC is going to target bloggers, probably on the basis of consumer complaints. You don’t think that will be abused, do you?

katiebabs October 5, 2009 at 21:29

With the US economy in the crapper and almost 10% of the workforce with no jobs, they enforce this! Ridiculous. And I am with you, about PW and other print review publications. Do they announce how and where and at what time they got the book?

Robin October 5, 2009 at 21:34

Ditto everything Jane said. Personally, I think there are serious First Amendment problems with these regs, and I expect them to be challenged, but the other thing that really frustrates me about this is that the burden is on those with the least power and not on those who are DOING the supplying, i.e. the *commercial* entities.

While bloggers may be part of the stream of commerce for products (intentionally or not), why should the burden by on *us* and not those who are *selling* the products? Especially since so much of our speech is NOT commercial in nature, and some, at best, only *incidentally* related to commercial purposes.

Sarah October 5, 2009 at 21:43

@Maili Hey, Maili!

@Jane My post was more about full disclosure in general rather than the FTC issue in particular, although that’s what inspired me write this post when I did, and I’ve provided a couple of links to material on it.

As I mentioned at Katiebabs’s blog, I would prefer to know the source of books reviewed, but I think a draconian enforcement is going too far. And as you say, it will get ridiculous if people are expected to mention the source of the books they read when commenting on other people’s blogs, etc.

Nonetheless, the basic thinking behind it is to do with consumer protection, and guarding against false advertising. I don’t disagree with that.

@katiebabs If these guidelines are to be enforced, they should definitely apply to PW and other print publications. Anything else is unfair.

Sarah October 5, 2009 at 21:55

Robin :

While bloggers may be part of the stream of commerce for products (intentionally or not), why should the burden by on *us* and not those who are *selling* the products? Especially since so much of our speech is NOT commercial in nature, and some, at best, only *incidentally* related to commercial purposes.

A salient point.

From a layperson’s point of view, the guidelines are worryingly vague. It’s hard to tell what, exactly, a blogger is supposed to do in the case of a negative review. Is it only considered an endorsement if a reviewer positively critiques the book? While I would personally apply the word ‘endorse’ only to a book I enjoyed, any review provides publicity. I’ve purchased books based on mediocre reviews.

Despite the limitations of the FTC guidelines, I think the basic sentiment is sound (i.e.: to protect consumers’ interests).

Wendy October 5, 2009 at 22:00

How the heck are they going to enforce it is my question? And assuming it does get enforced, I can’t help but feel it’s a momentumental waste of time and resources – especially in the current economic climate. If these government entities would just talk to me (hint, hint) I can certainly give them a multitude of better ways to spend their time and money. But nobody ever listens to me :(

That said, I have never viewed receiving ARCs as any kind of conflict of interest. Mostly because it’s been standard practice for ages, and how else are publishers going to get the word out on new books if they don’t offer up ARCs for advanced reviews? I’m much more concerned with personal relationships book bloggers may form with authors. For example, is Book Blogger X always going to give Author Z nothing but A+++++ Squeee! reviews because they’re BFFs? That’s what I want to know. Not whether a blogger got their hands on an ARC. I could give a flying flip about that.

Robin October 5, 2009 at 22:07

Another problem is that commercial speech receives a lower level of constitutional protection than non-commercial speech. But by the FTC saying that paid reviewers are exempt from disclosure but those who do it for “free,” they are, IMO, privileging commercial speech above non-commercial speech, violating the core principles of the First Amendment.

Sarah October 5, 2009 at 22:09

@Wendy I also question such reviews. Again, it all comes down to trust, and from my perspective, trust is gained from full disclosure. I remember Janine (?) at Dear Author reviewed one of Meredith Duran’s books and mentioned she’s her critique partner. I had the utmost respect for that.

Wendy October 5, 2009 at 22:17

Just noticed that I can’t spell. “momentumental?!” That’s not even a word. A librarian who can’t spell. Is there any thing more pathetic?

Sarah October 5, 2009 at 22:17

@Robin One thing which I find confusing is the ‘ownership’ of an ARC. I assume an ARC belongs to its provider, not to its recipient. We’ve all heard complaints about reviewers selling ARCs on eBay before their official release date. This would imply to me that an ARC remains the property of the author/publisher. If this is the case, than surely you are right when you say the onus should be on their side?

As I’ve said, I’d prefer reviewers to allude to the source of their books, but I’d be happy with a general statement that all books are ARCs unless otherwise specified. The FTC guidelines are too draconian.

Sarah October 5, 2009 at 22:18

@Wendy Heh! I’m an English teacher who has the odd typo!

Kat October 6, 2009 at 01:14

While I can see how this might be burdensome for book blogs, it makes sense given the number of problogging sites out there who actively market products for which they receive substantial affiliate commissions. It’s often difficult to determine if the product endorsement is trustworthy or not.

As for review copies, I didn’t use to bother mentioning whether or not we got the book from the publisher, but I’ve started doing it if only to give the (usually Australian) publisher a mention. Plus I think some people might prefer knowing if we were sufficiently enticed to buy the book ourselves or not.

azteclady October 6, 2009 at 04:22

Well, hell.

There go book discussions, as pathetically few and far between as they seem to be!

heidenkind October 6, 2009 at 05:24

I don’t have a problem with disclosure per se, but I think these regs are ridiculous. Shawn Spencer can casually mention how much he loves Doritos four times during the course of one episode of Psych without saying, but bloggers can’t mention how much they love they love something if they receive it for free in the mail? I know this is in the interest of protecting the consumer, but consumers are expected to filter BS from genuine information all the time in print and and TV on their own. Personally, I have to agree with Jane–to me it does feel like the laws are targeting our freedom of speech to a certain extent. I should be allowed to express my OPINION on something no matter how or why I encountered it.

Janet W October 6, 2009 at 06:11

I won’t comment on new books — altho I suspect that it’s in everyone’s best interests to make sure that soon-to-be-released books get in the capable hands of book reviewers, but what about all the book discussions about books that are already “out there”? Black Ice, Black Silk … just mentioning a couple.

You don’t think the blogosphere will explode when Mary Balogh’s Precious Jewel is re-released? Remember the many opinions when The Secret Pearl was re-printed?

Magdalen October 6, 2009 at 06:52

I respectfully disagree with Jane’s examples. There is a context that identifies a review as such; comments on other people’s blogs, tweets & Facebook entries are all clearly not reviews.

And ARCs can (and should) be marked as such when they come in. That way there’s no confusion if one gets reviewed — in the context of an explicit review — months later. But if you’re paraphrasing your own review months or years later, the original disclosure is sufficient.

Furthermore, there is a basic question when the reader of a romance-related blog that included reviews would actually expect the reviewer never to receive ARCs — the FTC makes it clear that it’s only in the situation where the customer would not expect a connection between the advertiser and the endorser that such a relationship needs to be disclosed. A well-organized blog like Dear Author can put a disclaimer (“We receive advance review copies”) on the blog and be covered; the occasional reviewer should mention when a book was provided free.

Finally, Jane’s anxiety about contributory liability is far-fetched in this industry. Where are the statement of facts in a romance novel review? How can Jane lie (because, c’mon, that is what the FTC is getting at: fraudulent statements by an endorser) about a romance novel? By telling her readers that it’s a paranormal when it isn’t? What makes us read her reviews are her opinions — we trust her to tell us what she thinks. If a publisher has provider her with sufficient incentive to lie about her opinion, then yes, I think the publisher should also be liable.

The reality is blogs — even blogs as influential as Dear Author — are not what the FTC is concerned about. Dooce — maybe. Some celebrity blog — sure (although I can’t think of one now). If a blogger’s endorsement can be bought, we should know that. I’m not a Constitutional scholar, but I suspect this will fall within the parameters of acceptable limits on Free Speech. And — Jane’s predictions of Draconian punishments aside — it really won’t be that hard to adjust to a world in which reviewers are honest about those times they got something free to review.

The sky is not falling.

Sarah October 6, 2009 at 10:06

@Kat

Kat :

While I can see how this might be burdensome for book blogs, it makes sense given the number of problogging sites out there who actively market products for which they receive substantial affiliate commissions. It’s often difficult to determine if the product endorsement is trustworthy or not.

Exactly. A blog can’t take ARCs, paid advertising and link to etailers, then turn around and claim to be a not-for-profit blog. The idea of an ARC being a gift is ludicrous. When an author or publisher gives an ARC to a reviewer, it is in the hope, if not the expectation, that they will review it. Obviously, they have no guarantee that said review will be positive, nor is the blogger legally obliged to read the book. Nonetheless, an ARC is not a gift in the usual sense of the word.

@azteclady But will the rules be so far-reaching? If all they boil down to in practice is that reviewers are obliged to reveal the source of the books they review, I don’t see anything wrong with that. And why would a reviewer hesitate to do so?

@heidenkind The regs certainly seem a tad over-zealous, but the basic idea of consumer protection is legitimate. People do buy books on the basis of reviews. I know I do. Not everyone knows which sites review ARCs, are friends with authors, have an in with publishers, etc. I can only respect a blog which is open about all of that.

@Janet W I have no idea how the rule will apply to previously reviewed books. An interesting question.

@Magdalen If I understand your interpretation of the scope of the rules correctly, you think panic is premature. If a blog were to put in a general disclaimer that all books reviewed on the site are ARCs unless otherwise specified, would this suffice?

Edie October 6, 2009 at 12:19

I think the FTC thing is needed, not necessarily in the book blogging world, but there is definitely a call for it in other sectors as I think Kat mentioned, it has been abused a bit in the pro-blogging in some sectors.
Basically blogging is a form of media often used to review – sell products, and realistically it should be subject to some rules to protect consumers.

As to the print media, I would assume they already have a set of FTC rules already? Not sure how to word this correctly, but with them also being definitely “professional” one could assume that the reader would automatically view the review as an advertisement – or through a different set of glasses. (told you I couldn’t word it properly) Where as there is no clear line in blogging as to personal and professional, and maybe that is what the FTC is trying to do here??

I would really rather know where the book came from, and if the reviewer has even a casual friendship with the writer/publisher.. even subconsciously that has an influence on the review IMO

Sarah October 6, 2009 at 14:13

@Edie Well said! There should definitely be some form of control over people promoting products without full disclosure of potential conflicts of interest. However, given the lack of success in combating piracy, I wonder how effective such controls will be in practice.

As for professionalism: bloggers can’t have it both ways. Either you declare yourself to be an amateur and accept absolutely no ARCs, ads or any other form of reward for your reviews, OR you go the route of accepting ads, linking to Amazon, agreeing to review ARCs, etc. In the latter case, full disclosure is the only way to maintain any sense of integrity. I realize there are cases which are arguably somewhere in the middle, such as my agreeing to review a couple of ARCs, but not wanting ads or Amazon links on my blog. As I said, the ARC reviews will be labelled as such. It won’t affect my view of the books but I think I owe it to blog visitors to say if I was given a book by an author or publisher.

Janet W October 6, 2009 at 16:15

That’s an interesting spin on my question — surely the FTC will “grandfather” all the books bloggers have already received. Isn’t this a “going-forward” ruling? What I was trying to say was that I doubt we’ll ever run out of conversations about books.

I absolutely agree with your comments to Edie. I too (bouncing off another tangent) want to know if a review has been written by a friend of an author … it’s professional to disclose that, imo.

Wish I had something to say about piracy. The extent of my pirary might be trying to leave the country with a library copy of Mary Balogh’s Wood Nymph under my jacket. JOKE, that was a joke! I just buy anything not available for sale new used.

Keishon October 6, 2009 at 16:22

I’m not worried about it. Not at all. Their target is not me. I’ve put in my disclaimers and I don’t mind telling readers if I received an ARC because ARC or no ARC, what you get is my unbiased, honest reaction. I don’t play that shit. It should be clear on my blog but I will state it again: I would never sacrifice my opinion for the sake of a free book.

In future I will disclose but it’s rare for me to review books from publisher’s these days. As a matter of fact, Evil At Heart by Chelsea Cain was sent to me from the publisher. But could you tell that from my review of it? It was a mixed review. Authors rarely if ever send me books. I’m too scathing I guess.

Sunita October 6, 2009 at 18:25

Sarah, accepting ARCs, ads, etc. does not necessarily remove you from the not-for-profit world. Not-for-profit has explicit legal and tax meanings in the US, and firms/foundations/etc. that are registered as NFP are still allowed to have income that exceeds expenditure, subject to certain constraints. Even if Dear Author managed to have more money coming in than going out (stop laughing, Jane), that would not automatically turn them into a for-profit enterprise.

That said, while I agree the FCC ruling is confusing and in the short term will probably produce far more heat than light, I think that there are genuine conflict-of-interest issues at stake here that should be made much clearer and easier to discern. Even if a site effectively pursues transparency in the sense that it states tht it receives ARCs and other bennies, that doesn’t mean that we know for any particular review or blog post whether that relationship applies. I think that non-blogging readers are far less aware of the interconnectedness of bloggers and businesses than bloggers think they are. What is obvious to a blogger is not obvious to a reader; I think of myself as somewhat knowledgeable about publishing, and I had no idea how widespread the provision of ARCs was beyond the obvious review sites.

I wonder if the edited-site exception has to do with the fact that the editor places one additional person between the reviewer and the provider of benefits, so the direct relationship (and presumably the quid pro quo) can’t be assumed without assuming collusion. Similarly, larger entities like magazines and newspapers have historically had walls between editorial and advertising. Blogs, even fairly big collective sites, don’t have that wall, for obvious reasons. And of course, some sites have had the same people running editorial and business (AAR during LLB’s time, maybe TRR as well?). I wonder where they will fit in.

Sarah October 6, 2009 at 19:25

@Janet W No, I don’t think we’ll ever run out of conversations about books!

@Keishon

Keishon :

It should be clear on my blog but I will state it again: I would never sacrifice my opinion for the sake of a free book.

And that’s why I love your blog!

@Sunita

Sunita :

I think that non-blogging readers are far less aware of the interconnectedness of bloggers and businesses than bloggers think they are. What is obvious to a blogger is not obvious to a reader; I think of myself as somewhat knowledgeable about publishing, and I had no idea how widespread the provision of ARCs was beyond the obvious review sites.

Very true but a non-blogger’s lack of awareness of these issues makes it even more important to be transparent in my opinion.

Magdalen October 6, 2009 at 19:31

Sarah –
>>If I understand your interpretation of the scope of the rules correctly, you think panic is premature. If a blog were to put in a general disclaimer that all books reviewed on the site are ARCs unless otherwise specified, would this suffice?<<

Yes, and in fact, I think the disclaimer can be more generic even than that. If a blog such as Dear Author states they accept ARCs, who cares if they also sometimes buy a book, or borrow a book? The very fact that their reviews range from A to DNF strongly suggests that no review is tainted by undue influence.

But consider the situation where a blogger/reviewer is invited to attend a conference, all expenses paid by a specific publisher. Wouldn't we all want to know that financial renumeration had taken place the next time we read a review on that blog of a book from that publisher? (I don't actually know if a publisher has ever paid for anyone to attend a conference, so this is a purely fictional hypothetical…)

The now-defunct Spy magazine used to have a feature called "Logrolling In Our Time" where they would pair up a favorable blurb from author X about a book by author Z, and then a favorable blurb by Z on one of X's books. No one cynical enough to enjoy Spy failed to get the point, which called into question the integrity and honesty of both blurbs.

But maybe the blurbs were just what they seemed: honest appreciation by both authors of each other's books. I don't see how we can know when the blurbs are honest if we don't know when they aren't. Wouldn't you love to know if either X or Z got paid to read the other author's books? Or simply entered into an agreement with their mutual publisher to trade endorsements?

But then I'm cynical like that, and I really miss Spy.

Jane October 6, 2009 at 21:12

@Magdalen Have you read the PDF of the Guide? Because my examples come straight from there and from the interviews given by the FTC person who said that Twitter and Facebook and message board comments are all covered under the endorsement guide. Will the FTC come after individual bloggers? There’s certainly a mixed message. In the NYTimes, it appears that they will. Cleland says that they are focused on advertisers. For a blogger who does receive ARCs, it is hard to be sure of anything.

The contributory fault issue, again, comes clearly from the Guide itself. It requires that the sponsor (whether it be author or publisher) police the sites where the product is sent. If the reviewer says something misleading then the author or publisher is responsible for misleading the consumer as is the reviewer herself.

Sunita says it more clearly than I can. The endorsements are not based on whether you are “for profit” or “not for profit” but on whether you have some kind of relationship with a) the sponsor or b) achieve money off of it. According to Cleland, having an affiliate link will require some kind of disclosure.

The ironic thing in all of this is that you all talk about divulging relationships but that is not something that is covered by the FTC Guide at all. The divulging of relationships is something that you have to rely on the individual reviewer to provide based on the integrity of that reviewer.

Jane October 6, 2009 at 21:17

Let me also include that the mere presence of an ad does not trigger the endorsement rule. In other words, I could accept ads all day long and I would only have to include a disclaimer for those books I reviewed that were in the ad itself. It’s the affiliate link which earns a blogger maybe 50 cents and the ARC itself that is worth maybe $7.99 that triggers the need for disclaimer. The ad, however, could be worth hundreds of dollars and not trigger the disclaimer at all.

That’s just one example of how this overbroad interpretation of the law doesn’t get at the goal that the readers here are wanting.

Sarah October 6, 2009 at 23:09

Jane :

The ironic thing in all of this is that you all talk about divulging relationships but that is not something that is covered by the FTC Guide at all. The divulging of relationships is something that you have to rely on the individual reviewer to provide based on the integrity of that reviewer.

While divulging relationships might not be covered by the US FTC rules, it’s certainly relevant in the wider context of review blogs located all over the world. A blogger who specifies a particular review is of a friend’s book earns my respect.

Jane October 7, 2009 at 00:10

@Sarah My point is that the law will never regulate or require a blogger to make the disclosures that are most important. There is nothing about this law that makes it so and there will never be a law that regulates the disclosure of personal relationships. In other words, if you don’t trust the blogger in the first place, then the FTC rules will not make that blogger more trustworthy in your eyes.

Sarah October 7, 2009 at 00:16

@Jane Why would there never be a law which requires the disclosure of personal relationships? Just curious.

Robin October 7, 2009 at 00:18

I wonder if the edited-site exception has to do with the fact that the editor places one additional person between the reviewer and the provider of benefits, so the direct relationship (and presumably the quid pro quo) can’t be assumed without assuming collusion.

Actually, I think that in the case of edited sites, it’s the *editors* who then carry the burden, not the reviewers. So let’s say there’s a review website for which a group of administrators receive the books and distribute them to reviewers, as well as handle all the financial and other bureaucratic aspects of running the site. My understanding is that it’s then the editors who are responsible for the disclosures, etc. not the reviewers. So the site itself isn’t exempt, per se, just the reviewers who have a buffer between themselves and the publishers/authors who send their books, etc.

Jane October 7, 2009 at 00:19

@Sarah Under what grant would the government require disclosure of who you exchange emails with? With whom you break bread? With whom you deem are your friends? That would be a gross invasion of privacy and I can’t see it being rationally related to a legitimate governmental interest. FTC can regulate commerce. It cannot regulate the personal interactions; who is critique partners with whom; who emails with whom; who develops relationships through blog comments and tweets, etc.

Sarah October 7, 2009 at 00:27

@Jane If you mean in the sense that such a law would be impossible to enforce, and therefore meaningless, then understood.

I wonder, though, how the FTC imagine they’ll be able to regulate who receives ARCs and who purchases their own books to review. Will people be expected to keep receipts for every book they buy? Also, how would a book received at, say, the RWA literacy signing be regarded? Would it count as a gift?

azteclady October 7, 2009 at 00:30

Sarah :
A blogger who specifies a particular review is of a friend’s book earns my respect.

Having or not the respect of readers won’t land a blogger/reviewer in court facing fines, though.

Sarah October 7, 2009 at 00:42

@azteclady Hopefully mentioning a friendship with an author would be more likely to keep a blogger out of court!

As for respect: I’d imagine a lack thereof could potentially land a blogger in court. If someone took exception to something they wrote, for example.

azteclady October 7, 2009 at 00:43

But the problem with these oh so vague guidelines is that they would seem to open bloggers to petty complaints disguised as legal concerns.

Sarah October 7, 2009 at 00:45

@azteclady Yes, that’s what I was getting at. There’s a definite potential for abuse, no question.

Sarah October 7, 2009 at 00:49

@Magdalen Sorry, Magdalen. For some bizarre reason, your comment from earlier today landed in spam. It should now appear in the thread.

Robin October 7, 2009 at 00:52

@Sarah Sarah, the right to privacy is a bedrock principle of Constitutional law. Although it is not granted explicitly in the Bill of Rights as, say, free speech is, it has been inferred as a fundamental right through many of the amendments (think about the 4th amendment, for example, freedom from unreasonable search and seizure).

As with any fundamental right (i.e. right granted by the Constitution), the government has to have a “compelling” (i.e. necessary) reason to interfere with or abridge it in any way. I cannot imagine that blogger freebies would ever be considered a compelling reason for the government to compel private citizens to disclose any number of personal relationships.

Beyond that, how are you going to differentiate among different relationships. Are authors who have a friendship supposed to disclose that everywhere? What about a blogger who meets an author at a conference, perhaps has dinner with her? The nuances are endless.

I think it’s wonderful that people have so much faith in the federal government to be reasonable in their treatment of bloggers (read: I understand why some people don’t want to get all upset about this and feel like they need to do something about it), but the number one rule of statutory interpretation is what does the text of the law say on its face? If it looks whacked on its face, you’ve already got a substantial problem, and you’re only at level 1.

Robin October 7, 2009 at 00:54

Reading through these comments, all I can suggest is that people read the actual guidelines. The examples Jane refers to in her post, for example, are taken from the guidelines – they are not wild, paranoid imaginings.

Magdalen October 7, 2009 at 01:12

Jane — It’s not that your examples are wrong, it’s that I disagree with your conclusions of what the examples mean in the context of book reviews. Until you can present me with a plausible example of a book endorsement that has factual errors in it, I really can’t imagine an author or publisher liable in the way you seem to have in mind. What the FTC envisions is an endorser who claims a product does more than it actually does — clear acne, reduce eczema, etc. I don’t believe your reviews claim certain books have cured depression, for example — and that’s the closest parallel I can think of.

And Twitter? Really? I apologize if this seems rude, but are you that famous that your endorsement on Facebook or in a tweet is that powerful? And again, the FTC’s own document makes it clear that their concern is for the consumer who doesn’t have any way of knowing that the endorser may have received renumeration from the advertiser. Time will tell, but my sense is that Dear Author’s notice to its readers that you receive and review ARCs is going to be sufficient to insulate you from an FTC investigation regardless where your comment shows up.

On the subject of relationships and the disclosure thereof, there are rules that govern conflicts of interest. I serve on the board of a not-for-profit health agency; last week we got a tutorial on the new revisions to the IRS Form 990, which not-for-profit organizations have to file as part of their tax returns. The new 990 requires 501(c)(3) organizations to report certain relationships among its executives, officers, board members, and key employees. As our accountant kept saying, it’s not against the law for an organization to fail to have a conflict-of-interest policy or not administer a questionnaire on CoF issues, but reporting those failures may raise a red flag with the IRS. Not surprisingly, more 501(c)(3) organizations will comply with these rules if the alternative is a greater risk of an audit.

So if you’re reporting to the IRS (and to the world; the 990 is intended to be available to anyone who makes a reasonable request) all internal conflicts-of-interest, and you’re disclosing to your readers any renumerative relationship you have with an author, publisher, or other beneficiary of your endorsements — what sort of relationship is left that you worry *isn’t* being disclosed?

Finally, the advertising issue is misleading: Advertisers contract with bloggers based on the number of visitors to the blog. I don’t see why a blogger needs to disclose the number of visitors it gets or what their advertisers pay; more popular blogs earn more revenue. That seems fair. But if a company purchasing ad space on a blog *also* provides some renumeration in return for an endorsement, that has to be disclosed to the consumer. The fact that the blogger is getting ad revenue is evident by the fact that the ad is there. Is the amount of money actually relevant? In the 1980s, state court judges were swept out of Philadelphia courts because they were being bribed by the roofers’ union for as little as $300. A bribe is a bribe, or to paraphrase George Bernhard Shaw, “Now we’re just haggling over the price.”

Sarah October 7, 2009 at 01:17

@Robin While I respect your take on US law and the FTC guidelines, I think we’re coming at this from different angles. As I don’t live in the US, I regard the guidelines and their potential ramifications with interest, but I’m more concerned with reviewers and full disclosure no matter where they live. Obviously, reviewer integrity in a global context is something which cannot be regulated by law.

You bring up an excellent point regarding the differentiation of the degrees of friendship. I wouldn’t describe someone whose blog I occasionally visit as a friend. On the other hand, someone I exchange regular e-mails with, and perhaps meet in real life, is moving more towards my definition of a friend. A critique partner would definitely fall under my interpretation of a friend/potential conflict of interest when writing a review.

Basically, the best any review blogger can do is strive for integrity and authenticity. Being open about relationships with authors and receiving ARCs certainly helps inspire trust in readers.

Jane October 7, 2009 at 01:57

@Magdalen Richard Cleland, the FTC guy, has clearly stated that he believes the endorsement rules cover facebook, twitter, and comments left around the web. So no, I don’t think my tweet about a book have any real power. But it’s not about what I believe, it is about what Richard Cleland and the FTC believes. I’m not making up these examples. I am drawing directly from the statements made by Cleland to CNet, Ed Champion, and from the PDF of the Guides themselves.

As for the advertising issue, that example was given specifically by Cleland at the Ed Champion blog. Again, I am not just drawing up examples out of a hat. I spoke with Cleland myself and so did Ed Champion and Ed reported the conversation on his blog. The examples I have provided here are drawn directly from Cleland and the FTC Guides.

Maybe my reading comprehension is going but here is what Cleland said about ads:

“In cases where a publisher is advertising one book and the blogger is reviewing another book by the same publisher, Cleland replied, “I don’t know. I would reserve judgment on that. My initial reaction to it is that it doesn’t seem like a relationship.””

and Twitter:

“As for Twitter, the FTC isn’t letting you get a pass with the excuse that 140 characters–Twitter’s famous text limit–is simply too short. “There are ways to abbreviate a disclosure that fit within 140 characters,” Cleland said. “You may have to say a little bit of something else, but if you can’t make the disclosure, you can’t make the ad.”"

Again, if you doubt a blogger’s integrity, FTC rules isn’t going to make that go away.

Additionally, given that DA is not a corporate entity and therefore NOT required to file the tax return and the conflict of interest that you cite wouldn’t apply and doesn’t apply to hundreds of blogs and review sites and doesn’t even apply to “friendships”, I still don’t see how these things are going to be navigated.

As for Dear Author, we already disclose and have disclosed in the past.

Jane October 7, 2009 at 02:03

@Sarah No I don’t mean that the law would be impossible to enforce. I mean a law requiring disclosure of friendships is not one that could be imposed on a US citizen.

Jane October 7, 2009 at 02:05

@Magdalen

I encourage you to read the PDF. It contains a number of examples and specific language about the regulations including contributory liability:

http://www.ftc.gov/opa/2009/10/endortest.shtm

Ed Rants blog which contains an interview with Cleland: http://www.edrants.com/

CNET which also contains quotes from Cleland: http://news.cnet.com/8301-13577_3-10368064-36.html

Maili October 7, 2009 at 02:21

This might interest those who want to research this a little more:

The FTC seems to have adopted an existing guideline – on the responsible use of social media – from by the Social Media Business Council’s guidelines that has been around for some time: http://www.socialmedia.org/disclosure/

Specifically those that might interest book bloggers:
http://www.socialmedia.org/disclosure/blogger-relations/
http://www.socialmedia.org/disclosure/compensation-incentives/

Their press release in light of the FTC’s guidelines:
http://www.socialmedia.org/blog/release-ftcs-new-disclosure-regulations-fully-reinforce-smbcs-disclosure-toolkit/

Excerpt: “We’re thrilled to see that the collaborative hard work of Social Media Business Council members received a big nod as the community’s open-source Disclosure Best Practices Toolkit was heavily reinforced in the new FTC regulations.”

Maili October 7, 2009 at 02:21

Crap. I think my response have just bomb-dived in SarahT’s spam box. lol.

Magdalen October 7, 2009 at 05:44

Jane — if DA discloses, and has disclosed in the past, what’s the problem? The FTC documents make clear in several places that the change in the regs only apply where the consumers (in your case, DA readers) don’t have a reasonable opportunity to know of the relationship between the advertiser and the endorser.

I don’t understand what the debate actually is. Is the FTC wrong to try to bring transparency to the business of endorsements? Or are they right to try, but these regulations are overreaching? And if they’re overreaching, is it simply because you might feel your free speech is infringed in a tweet or Facebook status update? Because, honestly, other than that one example, I can’t see how anything changes for you guys.

I accept your & Robin’s point that you’ve lifted the examples straight from the FTC pdf, even if I didn’t find quite the same things you cite. (The most relevant examples I found were these: the blogger who reviews a video game he was sent free by the manufacturer should disclose that he got it free; an employee of an advertiser posts comments on a popular message board in favor of the advertised product without disclosing his/her employment by the advertiser; and the three people who rave about a movie they’ve just seen in what appears to be a spontaneous televised spot should disclose that they were given the tickets free in exchange for being asked their opinions as they exited.)

Even after having read the document, I still don’t see the sky falling. It’s a pretty basic rule: if you got something for free and then you review it, tell people that you got it free. In your author’s liability scenario, the only examples I could find involved an actual advertisement. If Bantam Books wants to blurb a DA review, they have to verify that the facts in the review are accurate. (Oh, and I apologize — I have thought of a fact that could be materially misrepresented in a DA review: that someone actually read the book. So sure, the publisher or author should make reasonable efforts to verify that someone did actually read the book before they blurb the review in an advertisement. My bad.)

But in the effort to be fair and balanced, here’s the worst thing I could find relevant to this discussion. If a publisher is sending ARCs out to, say, 100 bloggers, that publisher has an obligation under the new regs to verify that those bloggers disclose that the ARC was received free if that book is then reviewed. That does burden the publisher with some liability as a result of the responsibility to police the blogosphere. I guess I could argue that both ways. I dunno — maybe that will have a chilling effect and fewer ARCs will go out.

I think this is a healthy debate, and I don’t expect to change anyone’s mind on this topic. But I am scratching my head as to one thing: doesn’t anyone self-identify as a consumer? The negative comments about the promulgated changes all reflect the point of view of the reviewer/blogger, the author, and (to a lesser extent) the publisher. Are none of you consumers? Do you really not see any benefit for yourselves as consumers, or is it that we’re already so cynical that we take all endorsements (expert, celebrity, and faux-fellow consumer) with a huge grain of salt?

Jessica October 7, 2009 at 15:56

I have to say Magdalen’s interpretation seems right to me. And it is supported by today’s blog by a Boston internet attorney, who says that book reviews, as long as they are honest — even when positive — are not actually endorsements, but rather subjective opinions which do not make covered representations.

http://www.bostonbibliophile.com/2009/10/guest-post-ftc-faq-for-book-bloggers.html

I personally do not agree, of course, that book reviews are merely subjective opinions, but I will accept that interpretation if it gets the FTC off our backs.

And to answer Magdalen, I am someone who looks at it as a consumer, and recognizes that these guidelines, while imperfect, are consumer protection driven. A dishonest review of a book may not hurt you, but a dishonest review of a medical device or treatment well may.

Jane October 7, 2009 at 18:42

Actually, Jessica, that is not the correct interpretation of the attorney’s explanation:

“”"Accordingly, the FTC may find that a blogger violates Section 5 if the blogger (1) posts a positive review that does not represent their honest experience with the product or service; (2) makes misrepresentations about key features of the product or service; or (3) fails to disclose a “material connection” or compensation arrangement related to the review.”"”"

The OR is important here. Any one of those three can constitute a violation.

Jessica October 7, 2009 at 21:45

Jane, You’re right! And I call myself a logical person! I KNOW how to read a disjunction, normally.

I’d better quit while I’m behind. Not only are my fake lawyer credentials getting thwacked, but my real philosopher ones are becoming suspect to boot.

Amy October 8, 2009 at 02:58

@Sarah
Rats, Sarah! I thought we were BFFs simply based on the fact that you list my lowly little blog in your blog roll. Tee hee!

I’m seriously trying to read and comprehend all of this and now my eyes are crossing. This is exactly why I never went to law school and decided to stick it out with healthcare. If I understand what I’m reading correctly, my lil’ ol’ blog where I only randomly review books from my own personal stash in which I’ve spent a butt-ton of money on is not affected by these new FTC guidelines. Correct? And the site that I review for (an actual review site in which none of us are paid except with the luxury of reading a book before its release date), where all the reviewers receive ARCs and such is ok, as long as it’s stated as such somewhere on the site in a blanket statement, yes?

Magdalen October 8, 2009 at 04:55

@Amy — Jane and/or Robin can set me straight, but I think your conclusion is right. If a review site has a blanket disclaimer that all the books it reviews are ARCs, I don’t imagine it matters if some of them are not actually ARCs. It’s the appearance of impropriety that matters here, to some extent. Better to have acknowledged that books are sent without charge, even if that isn’t true across the board, than try to keep track of which books were free and which weren’t.

What’s true here is that the integrity of such sites is unassailable. No one, least of all me, doubts for a nanosecond that the reviews on sites like DA are honest, thoughtful, precise, and completely professional — despite the fact none of the reviewers gets paid! I sincerely hope there is a revenue stream from advertising, and that it’s sufficient some reward down the line. It would have to be a lot of money before it came close to paying them what they deserve. I appreciate Jane and her colleagues — their efforts have elevated the entire profession. Free books — even hundreds of free books — don’t even make a dent in what the industry, including us readers, owe them.

And that’s actually what I’ve been trying, perhaps clumsily, to say here: Their website is already complying with the changes to the FTC regs. We can debate the need for, efficacy and implementation of those regs, but it’s clear that no one associated with any of the review websites I know of (including this one!) has any concerns.

And a final offer to Jane specifically. Regardless of what Mr. Cleland says, I feel strongly that you’re covered by DA’s existing disclaimers, even in the gray area of tweets, Facebook updates, and comments on other blogs. If the FTC ever does hassle you, I’d be honored to represent you pro bono. (You may well want a better lawyer, but you won’t find a less expensive one!)

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