bloggers

FTC Rules for Bloggers governing testimonials

by Fred Abramson on November 9, 2009

In early October, the FTC published its guidelines governing testimonials. The main purpose of these new guidelines is to protect the public from hidden endorsements.

Many bloggers are paid by advertisers to write about a product.  If you are a tech blogger and you were handed a shiny Droid phone by Verizon to blog about its new camera, you are now required to disclose that relationship.  The new guidelines  have  teeth, with fines of up to $11,000 for not disclosing payments. How are bloggers and advertisers able to protect themselves from an unwanted legal action?

ADVERTISERS AND BLOGGERS NEED A WRITTEN AGREEMENT

If you are an advertiser and you pay bloggers to review and report on your product and services, you must develop an agreement with the blogger that mirrors the guidelines of the FTC rules.  The agreement should:

  • Prohibit them from  against making baseless claims about the service or product;
  • Require the blogger to disclose the connection between the advertiser and the blog owner. A tech blogger must disclose in its review of the Droid smartphone that it received the Droid for free.

THE ADVERTISER MUST MONITOR THE WORK OF THE BLOGGER

  • The advertiser should also set up a Google Alert,  follow the blogger on all social media and constantly review the blog posts to make sure that the blogger complies with the FTC rules.

MONITOR YOUR EMPLOYEES

  • A company is also responsible for what their employees disseminate on social media.   Companies must have their employees disclose that they work for them in any reviews.  You can also prohibit your employees from reviewing any of your products.

BE TRUTHFUL

This may appear obvious, but both bloggers and advertisers now have an affirmative duty not to mislead or make a statement about the product that his untrue. Bloggers now have to perform due diligence about the product before posting.  Bloggers now must review the product in an unbiased manner.

What do you think of the new FTC rules?  Are they necessary?  How do you think they will be enforced?

The Law Office of Frederic R. Abramson drafts agreements between bloggers and advertisers.  For more information, contact me at 212-233-0666

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Internet Defamation Law: Twitter, Facebook and Bloggers.

by Fred Abramson on October 29, 2009 · 2 comments

Internet Defamation Law is becoming an increasingly important problem. Bloggers and anyone else using social media need to be aware of what they post online.  There is a serious threat of what you post can result in litigation.

I recently reported that there has been a 216% increase in libel lawsuits against bloggers.  Courtney Love’s Twitter defamation case is not going away.

Yelp, the popular review site, has been at the center of the debate because people are using the service to write reviews that are untrue.

A $1 million judgment, including an injunction and costs was granted against a defendant who persisted in posting false and defamatory statements in online forums regarding his fraudulent transactions at the expense of an online company. (thanks @jdtwitt)

How do you know if a statement that is written online rises to the level of  Defamation?

Defamation is an invasion of the interest in reputation and good name of a living person, which holds that person up to hatred, contempt, ridicule, or shunned by others (William Prosser, Law of  Torts 737 (4th ed 1980). You can sue both an individual and a company for defamation. Libel is written defamation, slander is oral.  A defamation claim may also raise the issue of intentional infliction of emotional distress.

Publication: The statement must be disseminated to a third party before a lawsuit can be commenced.  What this means is that other people must be aware of the remark before you can claim that someone’s business interests are damaged.

If the conversation is in email form and only the sender and recipient are  involved in the conversation, there is no cause of action.   Section 230 of the Communications Decency Act generally protects online service providers from being sued as a result of defamatory postings by users.

Damages: You must prove that you have been harmed in some way.  There are some cases where you don’t have to prove damages.  They are:

  • any remark about the unchastity of a women (sounds really antiquated)
  • imputation of a crime or of a loathsome disease
  • any statement about that person that affects his or her business reputation.

Before you race over to my office, you need to consider the following  issues to assess whether there are any defenses :

  • Is the work a parody? “Fake” Web sites and social media profiles appear to be a developing trend.
  • Is the person a alive, a public figure, private person or politician?
  • Is there anyone else objected to the post?
  • Are the statements made wrong?
  • Has anyone changed any of the content?
  • Is the statement or any of the alleged remarks true?
  • Is the remark accurate?
  • Has the publisher of the statement checked whether the remark was accurate?
  • When was the statement made? You must be aware of the statute of limitations.
  • Does the person who you would like to sue have insurance?  Without a deep pocket, your judgment is worthless.

What should you to protect yourself from Defamation lawsuits if you are a blogger?

If you are a content provider or blogger, you may find yourself facing a defamation lawsuit even if you did not write the remark.  For example, you may be liable for not reviewing the material posted on your site.  I would recommend that you purchase  E&O insurance.  You should also check your homeowners insurance policy, as many policies provide  coverage for defamation related lawsuits.

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