Boing Boing's Undisclosed Paid Endorsements - Do They Violate FTC Guidelines?


#1

Mark’s recent undisclosed use of an affiliate link in his VPN post caught me off guard. A quick check of other BB posts seems to confirm this is the rule, not the exception. Affiliate links make recommendation posts into paid endorsements, which, per FTC Guidelines, require “clear and conspicuous” disclosure in close proximity to the triggering issue. Boing Boing seems to avoid such disclosures as a matter of style and policy. Why?

Mark updated his VPN post noting that there is a disclosure at the bottom of the page. It’s a nonspecific, global disclosure, beneath the “READ MORE AT BOING BOING” thumbnails, in the black background of the page template:

[quote=“BB Fine Print”]
PRIVACY POLICY
Boing Boing uses cookies and analytics trackers, and is supported by advertising, merchandise sales and affiliate links.[/quote]
That broad “disclosure,” distant and separate from the actual post and paid link, does not seem to meet the FTC Endorsement Guidelines, especially not buried under the decptive headline of “PRIVACY POLICY” (burying disclosures is something the FTC specifically says not to do in it’s .com Disclosures Guide.)

The FTC’s FAQ on it’s endorsement guidelines puts BB’s affiliate links into perspective:

[quote=“FTC Endorsement Guidelines FAQ”]Isn’t it common knowledge that some bloggers are paid to tout products or that if you click a link on my site to buy a product, I’ll get a commission for that sale?

First, many bloggers who mention products don’t receive anything for their reviews and don’t get a commission if readers click on a link to buy a product. Second, the financial arrangements between some bloggers and advertisers may be apparent to industry insiders, but not to everyone else who reads a blog. Under the law, an act or practice is deceptive if it misleads “a significant minority” of consumers. So even if some readers are aware of these deals, many readers aren’t. That’s why disclosure is important…

Do the Guides hold online reviewers to a higher standard than reviewers for paper-and-ink publications?

No. The Guides apply across the board. The issue is – and always has been – whether the audience understands the reviewer’s relationship to the company whose products are being reviewed. If the audience gets the relationship, a disclosure isn’t needed. For a review in a newspaper, on TV, or on a website with similar content, it’s usually clear to the audience that the reviewer didn’t buy the product being reviewed. It’s the reviewer’s job to write his or her opinion and no one thinks they bought the product – for example, a book or movie ticket – themselves. But on a personal blog, a social networking page, or in similar media, the reader may not expect the reviewer to have a relationship with the company whose products are mentioned. Disclosure of that relationship helps readers decide how much weight to give the review. [/quote]

I feel I was misled. The affiliate link was not specifically disclosed. I didn’t realize the link was an affiliate link. I did not see the global “disclosure” at the bottom of the page template - a disclosure which is about specific and as helpful as the ubiquitous California prop 65 warnings that say “This facility contains chemicals known to the state of California to cause cancer” and tell you nothing nothing of any actual use.

I do not begrudge BB the right to make money from honest, paid endorsements via affiliate links, it just seems like they should be marked as such at the top of the post, at the very least, at the link. For example, “(affiliate link)” or “(paid link),” since not everyone knows what an “affiliate link” is. Or a “Paid Endorsement” tag at the top of the post.

To me, BB has often been about “openness good, sneakiness bad,” whether referring to the actions of media, government, business or individuals. So, the lack of clear and conspicuous disclosure about paid endorsements strikes me as a bit odd for BB. Even anonymous reviewers manage to write “Received a free copy of this book in exchange for an honest review” at the top of their review, in line with the FTC paid endorsement guidelines. It would be truly odd if a savvy organization like BB were unable, or unwilling, to be as clear about paid endorsements as someone who got a free ARC in exchange for a book review on Amazon.


#2

Everything you said up to this point seemed even handed. You’ve omitted a very specific paragraph in the guidelines you linked to which, to my mind, elucidates a bit of a grey area into which this type of affiliate linking falls.

I’m an affiliate marketer with links to an online retailer on my website. When people click on those links and buy something from the retailer, I earn a commission. What do I have to disclose? Where should the disclosure be?

Let’s assume that you’re endorsing a product or service on your site and you have links to a company that pays you commissions on sales. If you disclose the relationship clearly and conspicuously on your site, readers can decide how much weight to give your endorsement. In some instances, where the link is embedded in the product review, a single disclosure may be adequate. When the product review has a clear and conspicuous disclosure of your relationship – and the reader can see both the product review and the link at the same time – readers have the information they need. If the product review and the link are separated, the reader may lose the connection.

It reads an awful lot like they are saying you could proximately publish an acknowledgement of the endorsement and label affiliate links, this would be the best practice as customers can then make the best kind of informed decision.

If the product review and the link are separated, the reader may lose the connection.

Well, in this case, they are separated (and unspecific, except for the edited disclosure). Whilst this is obviously not what the FTC is promoting as ‘best practice’, it does seem to at least fall into ‘practice’.

Something your post seems to be trying quite hard to characterise as ‘not practice’.

I always appreciate more specifically noted relationships with advertisers and do find them many times in boingboing reviews or in journalism where the author is affiliated (pun not intended) with the organisation being reported on, directly or through family associations.

Perhaps there is a case for asking boingboing to individually annotate such posts but I don’t think they are required to go any further than they already are.


#3

I don’t think @Skeptic was saying there was a requirement per se. Rather this is a discussion on whether BB is (or should be) following the FTC guidelines, which could be considered as an accepted minimum transparency threshold. A threshold that a site as concerned with openness and honesty as BB is might reasonably be assumed to not cross.


#4

I’ve always known that BB uses affiliate links to Amazon, they’ve always been up front about that as far as I can remember. Or at least it’s been talked about a lot.

I don’t recall any other mention of them.


#5

(This has been a popular saw in the last few months; the following comment is reposted from the last time…)

We’ve always disclosed our use of affiliate links in our terms of service, here: http://boingboing.net/privacy

Here’s a snapshot from 2013 to demonstrate that this hasn’t been added recently: https://web.archive.org/web/20130807135753/http://boingboing.net/privacy

We’ve always been very loud and proud of our use of affiliate links. We pioneered it many years ago, when it was still genuinely shocking to many in journalism, and boasted about it to anyone who would listen. In our view, it’s a good way for small, independent, advertising-dependent sites like ours to diversify their incomes. We’ve been interviewed in various publications about our use of Amazon and other affiliate programs, and written about it ourselves many times.

Here’s founding editor Cory Doctorow writing for Locus about it in 2008: http://www.locusmag.com/Features/2008/05/cory-doctorow-think-like-dandelion.html.

And in Wired in 2009: http://www.wired.com/2009/10/ftc-bloggers/

And on BB itself, at least as far back as 2008: http://boingboing.net/2008/03/26/scott-siglers-infect.html

Guys, we tweeted our Valentine’s Day Gift Guide as “Help us make Amazon $$$ on Fuck Day”

So it is factually incorrect to say that we did not disclose our use of affiliate links, as we do so often and in lots of venues, including our own. We just didn’t do so in the place – as a line of text on every page of a site – that is the popular fig leaf.

Some of the interpretations of the FTC’s guidelines (and the consequences of ignoring them) made online are Internet Lawyering at its worst. But it’s best to go one better, anyway: to be shameless about something which is not shameful, and to encourage it by anyone who wants to make an honest living online.

If you have any questions, I’m happy to answer them.


#6

Even after Mark pointing us to the “disclosure” buried in the privacy policy, I still don’t know which outbound links are affiliate links, and which, if any aren’t - because they aren’t individually disclosed. I may assume all of their Amazon links are, but without trying to parse the lengthy underlying URLs (and I don’t know the affiliate link format for every possible vendor) there is no way on BB to know.

BB posts often still give off a very personal vibe, rather than a commercial one. That’s why I was especially caught off guard by Mark’s undisclosed affiliate link. His post seemed like he was doing readers a favor by merely pointing readers to a good deal because he likes the product and that’s what you do when you find a good deal, you share it. Even on highly commercial blogs like Gawker, named authors don’t just insert undisclosed affiliate links. Such posts are by the “Commerce Team,” a separate and distinct department.


#7

OK, let’s dispense with the lawyering (though I only mentioned “guidelines,” not the law, in my OP). I consider myself, as we all do, above average, and I’m a regular BB reader. Until this came up in the comments recently, I had not idea that anything other than the Amazon links were affiliate links. I also never saw the “disclosure” about affiliate links in “PRIVACY POLICY”. I still don’t know which outbound links are affiliate links and which aren’t, because they aren’t individually disclosed. And unless I parse each lengthy outbound URL and research the affiliate link format for each and every website you link to (if that information is even publicly available) I can’t know which is which.

So, I didn’t know. I still don’t. This seems an easy thing to fix, by conspicuous individual disclosure. Why not? How is asking for clarity “Internet Lawyering at its worst”?


#8

Authors sometimes mention in the post that something is an affiliate link; oftentimes they don’t. The bottom line is that each separate link probably won’t get individual disclosure every time because…

• We’ve always been loud and proud about our use and promotion of affiliate revenue as an alternative to advertising and merchandise sales.
• Anyone can check a link if they care to.
• It’s a superficial fig leaf: given the world of sleazy cash available to websites beyond affiliate links, ostentatious disclosures of minor income streams are no substitute for trust.
• It says on every page we make money from affiliate links.
• Working disclosure into the text of posts sometimes looks weird

There’s an element in all this of performance and posture, that it’s more important to follow the technical letter and form of a vaguely-defined and unenforceable regulatory wish-list than to actually be human beings pursuing particular ethical standards and talking about them openly in public.


#9

I don’t much mind the incessant ads for useless kitchen gadgets and luxury baby gear, but that VPN story was a little disturbing. The comments, for those who read them, suggested the brand Boing Boing was advertising sold an unreliable, difficult and insecure VPN. This might have real consequences for anybody whose business - or safety - depends on encryption.


#10

The guidelines are meant as best practices to prevent consumer confusion - and frankly, I was confused, and still am over which outbound links are affiliate links. Saying “We’ve always been loud and proud about our use and promotion of affiliate revenue as an alternative to advertising and merchandise sales” rings kind of hollow if you aren’t willing to mark the affiliate links individually, and are very defensive about it.


#11

How do you keep your locks so luxuriant?


#12

Asking for clarity isn’t internet lawyering. The idea that the FTC requires x of site y and consequence z will apply if it doesn’t comply – that’s the internet lawyering going on here.

The selective quoting from these guidelines is just wild, man. It says right there in them that there will be no enforcement. The FTC does a lot of good things, but it’s one of the more obviously-captured government regulators and its handwringing, half-hearted guidelines are no-one’s last word on ethics.

“i feel lied to”, oh please, take it to gamergate :smiley:

EDIT: I will say that I think the spirit of the FTC guidelines are right on. The point of them is to try and contain a particular problem: sleazy marketing blogs a level up from randomly-generated ebooks, where specific advertisers directly pay for (or simply create) fake editorial reviews and the like. That’s what the FTC means when it says bloggers won’t be enforced at: it’s the advertisers they’re after.


#13

Bottom line is when you click, something in the rigging of the internet knows about it and in some way, subtle or not, we get rewarded. The amazon links put a skim in writers’ personal pockets, but it all becomes transactional once you fall into that way of seeing things. The best policy, IMO, is that we continue to be observed talking about it, disclosing it in more humane and less superficial/technical ways than writing “THIS IS AN AFFILIATE LINK” in tiny type by each one or whatever – and fess up if and when we screw up.


#14

Caveat emptor.


#15

Argan oil and finasteride.


#16

poultry sacrifices don’t work BTW.


#17

Now you are accusing me of quote mining? Really? I tried to be very open in my post about my own experience, concerns and reasoning - and I tried to be careful to qualify my remarks. I used the FTC Guidelines as a reference, and quoted their FAQ with a big, unedited text block. And I provided a link to their .com Disclosure Guidelines. I put a bit of effort into this to be open and fair. And you are accusing me of quote mining, and of the “worst kind of internet lawyering.” ;-p

You’ve said BB " loud and proud about our use and promotion of affiliate revenue," so why is your “disclosure” affiliate links in your “PRIVACY POLICY”? I might have been able to buy the excuse that you havea disclosure on every page if it wasn’t hidden in the privacy policy.

Fixing this issue is trivially easy, just add “Paid Endorsement” to the top of the post. Or “(paid link)” next to the outbound link. If you really are “loud and proud” about affiliate links, you would. Actions speak louder, certainly louder than “we occasionally make posts about our affiliate links”


#18

Is there any chance of a visible distinction between “real” articles that may generate revenue from links that would have been included anyway and “ads” that add a fig leaf article or payola to a central affiliate link or promotion?

I realize that it is a sliding scale and we have no way to verify it anyway, but I think it could defuse the situation somewhat.


#19

Agreed. I don’t think the concern here is that BB gets a few affiliate cents when linking to Cory’s favorite new YA book or a new gadget that Mark’s been playing with.

The concern is that sometimes BB is explicitly paid to make an advertisement post in the first place, and it’s not always clear when that happens. The CoolTools posts are clearly advertising, and that’s absolutely fine and far more interesting than a simple banner ad. But the post about a (possibly unreliable) VPN service seems to have been a paid advertisement, but had the appearance of an unsolicited personal endorsement.


#20

Not you, specifically. But this comes up over and over again, in the form of “FTC says you must do this, and if you don’t…”

The last one was that we were going to be fined $10,000 per violation!

That said, the very first response in the thread was someone pointing out important omissions in your recounting of (some) parts of the FTC’s guidelines. People have heard this stuff before, over and over, so I hope you’ll forgive some cut-and-paste sighing.

Here’s the thing: you’re going to have a lot more success appealing to us on grounds of “I found this confusing/unethical” than by citing dimly-lit regulatory guidelines that have become the rallying call of a particularly relentless fringe of angry kids.