IAB Says FTC Blogger Rules Trample Constitution

NEW YORK The Interactive Advertising Bureau lashed out at the newly issued Federal Trade Commission blogger ethics guidelines, painting them as an affront to the Constitutional right to free speech.
 
IAB CEO Randall Rothenberg released an open letter to the FTC, reiterating many of the objections the trade group made during the comments process leading up to the commission issuing the guidelines earlier this week. In short, the IAB believes the enforcement guidelines restrict online media more than offline and could stifle free speech.
 
“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,” Rothenberg writes. “These revisions are punitive to the online world and unfairly distinguish between the same speech, based on the medium in which it is delivered.
 
The IAB called on the FTC to rescind the guidelines that, in Rothenberg’s view, “open the door to extremely selective pursuit and prosecution of those least able to defend themselves against government’s hammer: the solo entrepreneurs and opinionated individuals who are most vital to the functioning of our democracy and economy.”
 
The IAB’s combative stance is not for show, said Mike Zaneis, vp of public policy at the IAB. Rather, it marks a “line in the sand” against creeping government intrusion into political and commercial speech. He cited the recent requirements on search ads for political candidates and
pharmaceutical marketers, which, in his view, would essentially turn off a key method of speaking to people.
 
“It’s not an intellectual exercise,” he said. “We need to defend the First Amendment on many grounds.”
 
The IAB’s critique comes after the FTC guidelines, its first in nearly 30 years and published after a lengthy comment period, elicited plenty of consternation, most notably among bloggers. The rules state that a blogger
who has received money or “in-kind payment” tied to a product review must disclose the deal to readers. It also does not differentiate between paying cash and providing product samples, and bloggers are still liable to the
rules even if there is no requirement for a positive product review.
 
Zaneis said the rules would leave him open to an enforcement action if he accepted a sample pack of gum on the way to work and then updated his Facebook status that the brand was delicious without disclosing he got a free product.
 
The FTC has stated it had no plan to pursue individual bloggers or social media users, but Zaneis said the guidelines leave the door open to that.
 
“What they’re telling people is they’re breaking the law, but they’re not going to enforce the law,” he said. “That doesn’t seem to be a good standard.”
 
The hopes of the FTC reversing itself appear slim: Zaneis could not recall an instance where it has occurred. He’s still hopeful the commission will revisit the issue before they go into force on Dec. 1.
 
“Free speech is free speech,” he said. “Just because it’s made in the online medium, not offline, shouldn’t change the constitutional protections.”