FTC Social Media PR Regulation Update: Blogger Catch-22 or Loophole?

image [Update: Steven Hodson, Sean P. Aune and I all spent a good half hour discussing this topic on the CobWEBs podcast, delving into more of the details I learned after this item was posted.  Our general take? The FTC isn’t fully aware of the ramifications of their actions. Click here, or below to listen to the podcast.]

image BusinessWeek yesterday expounded on a subject we talked about last week important for bloggers and New Media journalists, the FTC’s aim to hold bloggers to “the same standards of disclosure” that mainstream media is held to.

When we broached the subject, we looked at it through the lens of how impossible these disclosure rules would be to enforce on certain New Media types, such as Twitter. We still believe that these new rules, which look to target bloggers specifically, would more or less exclude anyone in PR or social media consulting from owning and operating a Twitter account.

Beyond microblogging, we find an angle that Duncan Riley pointed out yesterday to be particularly interesting – it is certainly appearing as if bloggers are being held to a higher standard of “excellence” than Heritage Media.

As a point of clarification (or confusion, as it were), we’ve put in a request with the FTC to find out whether these rules currently exist or are planning.  In all the coverage we’ve seen, it’s been said that it’s in the planning stages and also that the rules currently exist which require disclosure. As we mentioned last week, certainly the spirit of the law is the untenable requirement of a complex legalese disclosure on every relationship with a vendor or client where it might be unclear to the reader, but whether or not the FTC has issued the rule officially on this hasn’t been made clear yet.

Regardless of whether the rules are publicly disclosed or not, the rules are certainly slanted towards restricting speech and current common practices only towards online outlets.  Did you get a review unit for anything lately? Did you include an exhaustive legalese disclosure statement on your blog post? You could be in violation.

As Duncan Riley pointed out, though, “mainstream media journalists receive goods for free on a regular basis, and only rarely is any relationship disclosed.”

These new rules create more questions than answers.  For instance, in Austin during SxSW, my friend Josh Dilworth’s PR firm Porter-Novelli bought me lunch on a couple occasions, gave me a branded package of breath-mints and Josh himself bought me a round of drinks at the Mashable party, if memory serves. Does that mean I must disclose that every time I talk about one of his clients (like Wolfram-Alpha, Twine, and the DEMO conference)?

It’s particularly murky in the Web tech and software world, since often the subjects we’re covering are free tools, and what constitutes as a payment from a PR firm could be open to wide interpretation. Given that the products and services are often free, it could be interpreted as a loophole or a Catch-22.

We’ll stay on top of this, as we have calls out to a number of lawyers and government representatives, and keep you in the loop. If you’ve got information or insight, we invite you to share it here in the comments.