Thursday, October 15, 2009
IAB Calls on FTC to Rescind Blogger Rules; Questions Constitutionality

NEW YORK, NY (October 15, 2009) — The Interactive Advertising Bureau (IAB) today called on the Federal Trade Commission (FTC) to withdraw recently issued enforcement guidance regarding the opinions and commentary of bloggers and other participants in social media, saying the rules unfairly and unconstitutionally impose penalties on online media for practices in which offline media have engaged for decades. In an open letter to FTC Chairman Jon Leibowitz, Randall Rothenberg, the President and CEO of the IAB, called the FTC’s distinction between offline media and online media, “constitutionally dubious.”

In his open letter to the FTC Chairman, Mr. Rothenberg said portions of the “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” would explicitly muzzle online media, while exempting offline media from equivalent scrutiny or penalty.

“What concerns us the most in these revisions is that the Internet, the cheapest, most widely accessible communications medium ever invented, would have less freedom than other media,” said Mr. Rothenberg, “These revisions are punitive to the online world and unfairly distinquish between the same speech, based on the medium in which it is delivered. The practices have long been afforded strong First Amendment protections in traditional media outlets, but the Commission is saying that the same speech deserves fewer Constitutional protections online. I urge the Commission to retract the current set of Guides and to commence a fair and open process in order to develop a roadmap by which responsible online actors can engage with consumers and continue to provide the invaluable content and services that have so transformed people’s lives.”

The Guides include revisions that specifically address online media and will require that bloggers who receive free products to review must disclose that they received those products for free or be subject to civil enforcement penalties.

There is a longstanding practice in traditional media of providing products and services to journalists including freelancers, for the purpose of reviews. Mr. Rothenberg writes in his column:

“They—and we—are not arguing that bloggers and social media be treated differently than incumbent media. After all, most newspapers, magazines, radio stations and television networks, in recognition that Americans are embracing new forms of social communications, have established their own blogs, boards, Facebook pages, Twitter feeds, and the like. Rather, we're saying the new conversational media should be accorded the same rights and freedoms as other communications channels.”

Pages 47 and 48 of the Guides emphasize the FTC’s disparity in the treatment of online media versus traditional media:

acknowledges that bloggers may be subject to different disclosure requirements than reviewers in traditional media. In general, under usual circumstances, the Commission does not consider reviews published in traditional media (i.e., where a newspaper, magazine, or television or radio station with independent editorial responsibility assigns an employee to review various products or services as part of his or her official duties, and then publishes those reviews) to be sponsored advertising messages. […]

In contrast, if a blogger’s statement on his personal blog or elsewhere (e.g., the site of an online retailer of electronic products) qualifies as an “endorsement” – i.e., as a sponsored message – due to the blogger’s relationship with the advertiser or the value of the merchandise he has received and has been asked to review by that advertiser, knowing these facts might affect the weight consumers give to his review.

To read the full text of the letter, and learn more about the IAB’s Public Policy work, please go to www.iab.net/public_policy

About the IAB:
The Interactive Advertising Bureau (IAB) is comprised of more than 375 leading media and technology companies who are responsible for selling 86% of online advertising in the United States. On behalf of its members, the IAB is dedicated to the growth of the interactive advertising marketplace, of interactive’s share of total marketing spend, and of its members’ share of total marketing spend. The IAB educates marketers, agencies, media companies and the wider business community about the value of interactive advertising. Working with its member companies, the IAB evaluates and recommends standards and practices and fields critical research on interactive advertising. Founded in 1996, the IAB is headquartered in New York City with a Public Policy office in Washington, D.C. For more information, please visit www.iab.net.

IAB Media Contact:
Marla Aaron
Director, Marketing Communications
212.380.4714
[email protected]