What must bloggers disclose when writing reviews of products or services?

After years of bloggers writing favorable reviews of products in pay-for-play deals with marketers, the FTC stepped in to treat these sorts of endorsements the same as more traditional print and broadcast marketing campaigns.  The new guidelines went into effect in December 2009.

These revisions were made to ensure transparency in endorsements, and the revised guidelines are pretty clear on the duties of both marketers and bloggers who endorse their products/services.  In essence, any “material connections” between the company making the product/service and the endorser must be disclosed.  These “connections” include any benefits the endorser receives from the company that “might materially affec the weight or credibility of the endorsement,” particularly when the audience would not reasonably expect there to be such a connection.  

This usually entails receiving free products or services from the company in exchange for a positive review.  An article on mashable that gave examples such as General Mills sending out samples and previews of new cereal and yogurt products to bloggers for reviews, and Ford giving its new Fiesta car to bloggers for a year (with a gas card) in exchange for reviews.  While no money changed hands, these benefits would clearly need to be disclosed under the guidelines.

Similarly, I would caution bloggers to disclose any relationship that confers a benefit – even if its discounts or coupons on products or chances to win a gift card in a blog contest.  The point of the guidelines is to make it clear to the audience if something is motivating the blogger to slant his or her review of a product/service. 

The disclosure must be “clear and conspicuous,” as well.  For example, requiring readers to click through to a separate disclaimers and disclosures page probably won’t cut it.  The disclosure – “I received XYZ from the company in connection with the publication of this review” – should be on the same page in a place that would be easy for the reader to see. 

The revisions are in the updated Code of Federal Regulations (16 CFR section 255).  In one example the FTC gives, a blogger who usually uses one brand of dog food buys “a new, more expensive brand made by the same manufacturer.”  She then writes a positive review about how her dog’s coat was “noticeably softer and shinier.”  Because she used her own money and was not affiliated with the manufacturer, no disclosure is required.  If the manufacturer sent her a coupon for a free trial of the new dog food without any knowledge that she would blog about it – in the FTC example, because a computer program had tracked her purchases and thought she may be interested – again, she would not be required to disclose this.  BUT, if the blogger is part of a “network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so,” then she would need to disclose that she received a free bag of dog food in connection with her review.

This isn’t just for bloggers.  Posting endorsements of products on message boards or in other online product review forums should also be disclosed.  I think product reviews on Amazon and restaurant reviews on Yelp would require disclosure of these relationships, for example.

What are the consequences for violating these guidelines?  The initial fears making the rounds on the Web were that the FTC would fine violators up to $11,000 for a noncompliant post.  An assistant director for the FTC quelled that, saying it was “not true” and that for first-time violators, the process would more typically be receiving a warning, followed by a cease-and-desist letter, with no monetary penalty for a first violation. (see article on Fast Company) Only if a blogger went so far as to refuse the cease-and-desist letters to the point of violating deceptive advertising laws – something that would require the FTC to bring a legal action in court to enforce compliance – would a fine or other penalty be a possibility.

The takeaway:  Bloggers writing reviews of products must disclose benefits they receive from the company marketing that product.  The FTC considers these to be endorsements.  The disclosure must be clear, not hidden away elsewhere on a blog.  First-time violators may get a slap on the wrist, but consequences could be worse for those choosing to ignore FTC letters.

Is burning a Koran a firing offense for a public employee?

Good discussion today in the New York Times “Room for Debate” about Derek Fenton, the New Jersey Transit Authority worker who was fired from his job after burning pages of the Koran in a protest at the Park51 project, the “Ground Zero Mosque” (imagine me doing air quotes here) that is, of course, neither a mosque nor at Ground Zero.

Regardless of how silly I think the debate over siting of a religiously-affiliated community center is — would people complain about construction of a Christian church near the Oklahoma City bombing site because Timothy McVeigh was raised Catholic or because Terry Nichols converted later in life? — I’m still perplexed by the decision of a public agency to dismiss an employee for expressing his constitutionally-protected rights. 

Which is to say, I’m no fan of Koran burning — or flag burning or cross burning, for that matter — but I’m even less of a fan of the government sanctioning speech it doesn’t like.

I think the points Eugene Volokh, Alan Dershowitz and John Eastman are well-made here.  We had a lively discussion of this in my law & ethics of mass communication course last week, and after reading these additional points, I’m convinced that courts would not uphold the NJ Transit Authority’s firing of Fenton here.

My other point, a bit of a side note, is where’s the union?  Is Fenton a contract employee and union member, as I would expect of a government worker in New Jersey?  If so, why haven’t union leaders stepped up to defend the free speech of one of its members?

And how does all this relate to the Web?  Well, think of it this way:  Suppose Fenton spoke out against the Park51 project on a blog or on his facebook page — would that be a firing offense?  How is that any different than burning the Koran while off-duty in a public place?

So I found this photo on facebook…

 It’s a question I’ve heard from our student newsroom twice in the past couple of weeks, and I’ve heard some chatter on Twitter on it as well from @hartzog, @derigansilver and @johnrobinson.  “Can I use this photo I found on facebook in my news story?”

 The scenario usually unfolds like this:  A story breaks on a relatively unknown person, and without a mug shot or an AP wire photo available, intrepid reporters turn to facebook or MySpace for photos of this person.  Sound familiar?  If you remember Eliot Spitzer’s  (ahem) friend  from the high-end prostitution ring from a couple of years ago, or the red-haired Russian spy more recently, the first photos you saw of them were, most likely, from MySpace (in the case of Ashley Dupre) or facebook (in the case of Anna Chapman) accounts.

 I’m going to guess that the reporters who dug up these photos didn’t get them through a publicist or ask for, much less receive, any permission to publish them.  This approach comes from the classic Internet  culture of “I found it online, and it’s free, so I must be able to use it.”  And that worked out so well for Napster, right?

 Two issues come up in this scenario – one legal, one ethical.  Legally, I see a huge copyright issue here.  Whoever took that photo has a copyright in it, attaching the moment the photo button was pushed.  It’s an original work of authorship in a fixed medium of expression.  The copyright act couldn’t be clearer on this.

 The question is, does it just become public domain by virtue of being posted on facebook?  Of course not.  If you put up a photo of your lost dog on a coffee shop bulletin board, does that photo become public domain, able to be used anywhere by any person who wants to grab it?   If you leave a photo album on your coffee table, can any guest to your home borrow a photo and use it for whatever purposes they want?

 So, moving online, is that unfortunate photo of you in the sombrero from college tagged on someone else’s facebook account fair game for use by anyone – friend or otherwise – who can access it?   Perhaps they could make a nice greeting card from it?

 And I don’t think this qualifies as fair use either.  A use for news purposes would meet the first threshold for review under fair use guidelines, but under the four-part balancing test applied by courts in looking at fair use, I don’t see how any one favors the republisher:  The use is for-profit, the entire photo is used, it most likely is a significant element of the news story, and it harms the market for the original copyright owner by giving away for free what the owner could legally sell.

 So how, you may ask, did the photos of Ashley Dupre and Anna Chapman wind up with news stories about them?  Chances are, reporters grabbed and posted, and nobody asked any questions afterward.

 Think about this:  What if someone had?  What if the people in these photos, or the people who took them, felt wronged about the use of their facebook photos?  What remedies would they have?

 Invasion of privacy is, most likely, not an option.  As you probably know by now, you don’t have any reasonable expectation of privacy in photos or statements made on the Web.  It’s a bit like posting the lost dog poster in the coffee shop or putting out your photos on the coffee table – you give up your right to claim intrusion when you invite public people to see them.  As my privacy-expert friend Woody Hartzog points out, you may have a (warning, legal jargon ahead) promissory estoppel claim through facebook’s Terms of Service – that is, friends promise not to violate others’ copyrights (see the Terms of Service, Part 5, first item) as a term of signing on to facebook, and breaking that promise means one could be liable for damages incurred as a result of that violation.  The MySpace terms present a similar quandary.

 [For what it’s worth, the facebook Terms of Service DO allow facebook a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license” to use the photos you upload.  These do not carry over to all users, of course.  But creepy, eh?]

 But that’s not the strongest argument.  If the person whose photo was used wants to make your life miserable, he or she could make an easy copyright infringement case against you.  All they’d have to do is find the friend who took the photo, ask him or her to file for a copyright on it, then go to federal court and ask a judge for damages.  Minimum statutory damages are $750 per violation, but I could see a photo that gains widespread attention bringing in more than that.  Why shouldn’t the person who took that photo be entitled to the same kind of protection that, say, a professional photographer should if somebody used his or her work without paying for it?

 I’m not saying this is the most likely scenario.  The easiest remedy for someone to take to remove a photo from unlawful republication would be to issue a takedown notice to the ISP under the Digital Millennium Copyright Act.  But that won’t make them any money, nor will it satisfy their lust for revenge. 

 People who feel hurt will find ways to hurt you back, and they have all the legal rights they need if you violate their copyright by reposting a photo.   So don’t do it.

 Instead, take the easy and obvious route:  Ask permission.  Get it in writing (keep your email messages).  Only reprint when you know the copyright holder has consented.  And if you can’t get that consent – it’s probably a good thing you didn’t publish it, right?

 Onto the ethical ramifications here.  While facebook users may not have any privacy rights guaranteed by the law, they do have reasonable belief that the service is to share their information with friends.   As a journalist, would you have any ethical issues with rifling through the photo album of a citizen after he or she had been arrested or implicated in some huge news?  Consider the following from the SPJ Code of Ethics:

 “Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention.  Only an overriding public need can justify intrusion into anyone’s privacy.”

 And:

 “Show good taste.  Avoid pandering to lurid curiosity.”

 Consider the photos of Ashley Dupre in a bikini.  Is there overriding public need for this information?  Or is this pandering to lurid curiosity?

 In short, facebook photos aren’t posted with the intent of becoming public domain and usable for any purpose, news or otherwise.  Journalists should know better.  And for those who don’t, some day, the hammer will come down.  I tell my students, “don’t let this be you.”  I offer the same advice to journalists everywhere.

What the First Amendment really means

I’m so proud that, by the end of the semester each time I teach Law & Ethics of Mass Communication, my students know more about the application and reach of the First Amendment than those people who are enriched by their ability to speak publicly.

As I teach, the phrase “Congress shall make no law…abridging freedom of speech, or of the press,” really doesn’t mean what it says. That is, “Congress” doesn’t mean Congress (it includes the states and other government bodies now, thank you very much 14th Amendment), “no law” doesn’t mean no law (there’s balancing that goes on), “speech” doesn’t mean speech (it includes actions and silence, for example), and “press” doesn’t mean press (airwaves, Web, etc.).

That said, the speech/press clause of the First Amendment does VERY CLEARLY only apply to government action. It restricts, in some (if not most) instances, the ability of the government to interefere with our rights to speak and publish.

It does NOT mean people don’t have a right to say whatever they want without fear of repercussions of fellow citizens. That’s the difference between the “marketplace of ideas” and, you know, an actual marketplace.

Ken Paulson of the First Amendment Center gets it right here: http://news.yahoo.com/s/ynews_excl/ynews_excl_pl3441

Five things I learned at AEJMC

The annual conference of AEJMC, the journalism educators’ association, is where I go to reconnect and recharge with colleagues and friends about teaching and research — the twin backbones of college professordom.

My takeaways:

1.  Social media isn’t going away, and those who don’t embrace it are doomed to irrelevance.  Just because it’s not the media interaction we grew up with doesn’t mean it’s not the present and future. 

2.  At the same time, as West Virginia professor Bob Britten said on a panel, social media is both the “big, new thing” and the “last, old thing.”  It’s a tool, one that our students and current professionals should embrace to do their jobs better. 

3.  Though it’s the ”big, new thing,” we sure don’t know that much about social media.  Researchers and practitioners are making it up as we go along, doing the best we can to apply old modes of thinking to the new tools.  It’s a long transition.  We need more study of the field, more collaboration on addressing and understanding the challenges of social media. 

4.  Somebody, and I’m looking at me here, needs to write a book about social media and the law.  The implication of current cases and issues on jurisprudence, legislation and regulation of social media outlets must be addressed.  We need a sense of best practices to take advantage of the best parts of social media tools while avoiding the potential pitfalls they bring.  What are the limitations on copyright?  Should the Communications Decency Act be revised to avoid shielding sites that actively encourage anonymous sliming of people?  In journalism education, what can we do to coach responsible, legal, ethical use of social media without severely cramping the way our students learn and write?

Thank goodness I’m surrounded by amazing colleagues who get this and are interested in researching it. 

5.  I wish I had more time to actually pull off all of the research ideas I get at the AEJMC conference.  I came up with about a half dozen that I’d love to do, if time permits.  Maybe two this fall — best practices for developing social media policies, and researching the way the Civil Rights Act has been used by people who assert violations of the free speech/press provisions of the First Amendment — if I’m lucky.  Plus a book proposal on social media and the law.  Plus clearing my desk of other research articles that need to get out to publishers.

All I need is a legion of minions (I mean, um, research assistants), and it will all get done…

Down from the mountains

After nearly a week in Denver at the annual conference of AEJMC, I got back home to Texas today, only to find out one of my credit cards had been used in Mumbai and my home computer had been infected by the devilish Antivir virus. 

Several phone calls and a system restore later, it’s time to get this blog started.  If there’s anything I learned in Denver — and there was, too much to include in one blog entry — it’s that the time has long passed for me to start talking about some of the awesome ideas bounced around with journalism prof colleagues in Denver and elsewhere.  Here’s where I intend to do that.

First project — social media policies for news media and public relations/advertising practitioners.  This is where I’ll be working on that this fall.  Well, that and about five research articles, and an update to the Law & the Media in Texas handbook.