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

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Sez you.

This footer appears on Every. Single. Page.

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I consider that sufficient notice that I should consider every link a potential affiliate link.

Also, I think the Privacy Policy is an EXCELLENT location for this type of disclosure. BB doesn’t know who I am, but Amazon sure does. By buying something through an affiliate link, I’m taking the risk that someday a breach at Amazon might tie my meatspace secret identity to my BB alter-ego. That’s surely a privacy risk that I want to be informed about, and the Privacy Policy is where I expect to find it.

Within BB’s Privacy Policy, they go on to disclose 8 other ways that the words you see might be tied to money you don’t. The BB Privacy Policy is one is one of the more readable, least legalese, and more lay-friendly versions I’ve seen. If you can find another indie-style site that has a better disclosure, please share*! It will be more productive that copy-pasting that same FTC quote for a fourth time.

*(for comparison, I just spot-checked a few places, Cool Tools, Wirecutter, Cool Hunting. I think BB’s is more visible and parse-able than them, but Wirecutter does have a good point that I get to in a second… and I couldn’t find any disclosure statements for Daring Fireball or Josh Spears)

On the other hand, I think there needs to be due consideration given to “what’s the alternative?” and "“what’s the harm?”

Let’s say Jason recommends a vacuum. He can describe it, name it, post a picture of it, and if you want to buy one you can go and google it yourself and buy it.

Jason could also include a hyperlink to where he bought it, and that now saves you time and keystrokes from googling. For people who are thinking of buying the vacuum, he’s just done you a favor.

What line is crossed when Jason includes code in that link that allows Amazon to tip him for tipping off a new customer? Your price didn’t increase, so no one is fleecing you. Do you object to Jason getting a tip for a referral? He just did you a favor. Do you worry he’s going to start linking to crap just so he can rake in the big bucks? That’s a short-road to sell-outs-ville, burning any hope of longterm trust for a quick buck.

Which brings us back to the Wirecutter’s disclosure of how they use affiliate links, where this bit is nicely put:

If we recommend good products, our work is supported through a small kickback from the retailer when you make a purchase. But if we pick junk and you return it, we make nothing. We think that’s a fair system.

Emphasis added. No one is making you click on those affiliate links, and then add it to your shopping cart, and then checking out, and then keeping some terrible tchtotcke.

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This is a recent (as in, less than six months) addition. On the home page it appears only after a very long scroll, even though the home page often contains many affiliate links.

The privacy implications are broader than that, since BB also gets reports on what products people buy after following the affiliate links. And while it may be appropriate to put this disclosure in the privacy section, that doesn’t mean that affiliate linking also has non-privacy, financial implications. This is why it should actually be in BB’s ToS (contrary to @beschizza’s initial post in this thread, it’s not in their ToS).

What line is crossed when you review things given to you for free, for review? Because under those circumstances we know Cory feels an explicit disclosure is required in the text.

For me, when you are generating maybe six figures in affiliate income, and any given link might generate four digits in revenue, it’s quite possible that these financial incentives might start to affect the way you write, what you chose to write about, and what vendors you link to. You don’t think so? Well, I guess that means you think that BB writers think that Amazon is the best, most ethical, and most responsible of all the vendors they could link to. We know Cory loves their tactics, yet he seems to link to them for just about everything: clearly money has influenced something about how he posts. Is it so outrageous to think that other posters review things they might not otherwise review (even though they genuinely like them), because affiliate income encourages them to? Is it outrageous to think that time spent on these reviews and posts have opportunity costs? Is it outrageous to think that Amazon factors in affiliate payments into their costs, and that affiliate payments actually do increase costs to customers?

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If you don’t like the content on Boing Boing, don’t read the content on Boing Boing. Don’t whine that they’re failing some purity test dreamed up the Federal Trade Commission.

Those FTC guidelines are bullshit anyway. A federal government that cares about the menacing influence of bloggers is a federal government with too much time and money on its hands.

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I like the disclaimer. It’s cute and succinctly informative, but it omits some critical details that make a difference in the real world were BB to use a similar approach.

In the case of Mark’s undisclosed paid endorsement of a discount deal on a VPN service, the purchase was non-refundable, though StackSocial made some strategic exceptions based on the public attention - exceptions that most dissatisfied purchasers will not and cannot get. So BB gets money whether you like the service or hate it.

Also, Boing Boing doesn’t just make money if you buy the specific items they link to, on Amazon they make a cut of everything you put in your shopping cart during that session. Which explains why BB uses affiliate links for stuff they presumably don’t think you’ll buy, such as the 55 gallon drum of lube they affiliate linked to. This further drives homes the fact that the Amazon affiliate links are undisclosed advertisements for Amazon - something which Amazon recognizes in the disclosure Boing Boing is required by Amazon to post, but doesn’t.

Also, disclosure buried at the bottom of the page, misfiled under the heading “PRIVACY POLICY,” is not adequate disclosure. If readers don’t know there is anything that needs to be disclosed in the posts they’ll have no reason to hunting for disclosures.

When I first posted this thread I thought Boing Boing’s “hide the disclosure” game was an oversight rather than a deliberate deception. But after Rob’s meandering litany of excuses, including the outrageous claim that disclosure is bad for consumers, I’m starting to think otherwise.

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I think that is a very important point. This isn’t just about how payment affects which products are recommended, but also which vendor is linked to. As you note, Cory has been very critical of Amazon’s DRM policies on Kindle and Audible. He’s not a fan. Yet for the Valentines gift list Corey recommended a book and linked to Amazon with his “downandoutint-20” Amazon Affiliate ID rather than to another vendor or the author’s product page.

Affiliate links can and do affect behavior, which is why clear and conspicuous disclosure is needed. It is kind of stunning that some BBer’s would try to claim otherwise.

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Well isn’t he just a little Hitler?

I wouldn’t lend him your credibility (nor risk appearing to endorse his POV) by using this site and implicitly agreeing to its terms, were I as true a Scotsman as you.

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If BoingBoing/Jon Stewart/whomever doesn’t like the content of Fox News, they shouldn’t consume the content of Fox News. Let’s see how that works.

And yet it’s a major story worthy of BB and governmental attention when herbal pills might not contain all the Gingko they’re advertised as containing.

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And you are being very offensive about it.

The headline alone is false – there’s no “undisclosed paid endorsements.” They aren’t paid endorsements, they’re affiliate links, and they aren’t undisclosed, they’re disclosed all over the place (as others have pointed out).

Fixing this issue is trivially easy – you can shut up and stop bothering the rest of us who are not confused by the disclosed affiliate links, or you can… Nope, really, that’s pretty much it.

Uh, I don’t.

Yeah, what he said.

You could call yourself TotallyNotATroll or RealSteveJobs, for instance.

BECAUSE ITS EFFING ANNOYING. It’s like signing your posts in a forum.

sincerely yours, &c &c,

OtherMichael


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Why the FTC?

Why not the Canadian Radio-television and Telecommunications Commission ?

###Not everybody is from America, Imperialist!

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##OMG!!!

Perhaps you could disclose, close to the slightly differently-colored links, the reason for the slightly different coloration?

#OMG!!!

undisclosure-much?!?

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Endorsement + Payment = Paid Endorsement.

The FTC considers recommendations with affiliate links to be paid endorsements, ones that require clear and conspicuous disclosure. The FTC Endorsement Guidelines FAQ includes an affiliate link example that is on all fours with Boing Boing’s use affiliate links and buried “disclosure”.

That is exactly what Boing Boing is doing. Boing Boing’s “disclosure” is buried in the PRIVACY POLICY, and the FTC specifically says that “isn’t good enough.”

I’ve provided a citation to an on point example that clearly demonstrates that Boing Boing’s buried disclosure of paid endorsements fails to meet the FTC Guidelines.

As to the buried disclosure being adequate…well, then, I invite you to play “Spot the Paid Link!”. Tell us which links in the February 7th Valentines Day gift list are paid, and which aren’t?

As a tech savvy person, you can probably tell which links are paid, if you hover over every single link and try to figure out if there is an affiliate code in the URL, but even that’s only if you know in advance to look in the first place. Now ask an average person which is which. They won’t know. And that is the bar: that "[t]he average person who visits your site must be able to notice your disclosure, read it and understand it.

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Sometimes TDS makes valid critiques of Fox, sometimes they whine about piddly crap like this. If the original post made a substantive critique other than “the ways you’re compensated don’t meet my arbitrary standard” I wouldn’t take issue with it.

Here, you and I are on the same page. Waste of time.

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From the ToS:

Any claim or dispute between you and Happy Mutants arising out of or relating to these Terms, in whole or in part, shall be governed by the laws of the State of California, without respect to its conflict of laws provisions. We agree and you agree to submit to the personal jurisdiction of a state court located in San Francisco, California or the United States District Court for the Northern District of California.

I mean, you did read the ToS, didn’t you? It’s clearly linked on every page, and has been there forever. They’ve even talked about their ToS over the years. I don’t know why you’re confused by this.

They have a disclosure at the bottom of every page, though this is a recent development. You no longer have to click through to their privacy page to find the disclosure. I happen to think this is inadequate, but it is true that they now have a disclosure on every page (except on the bbs pages, which may be another problem).

Well, I don’t think it’s an arbitrary standard when it’s an FTC guideline and many (if not most) other reputable bloggers are trying to comply with those guidelines.

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I’m going with ‘loss of perspective’.

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I’m actually referring to it being buried under the misleading headIing of “PRIVACY POLICY” at the bottom of each page in the page template, not to the fact that more, but still inadequate, detail is buried on the privacy policy page itself.

Because the individual affiliate links are not marked as such nobody knows to scroll down the page to look for a disclosure, and certainly not under the heading “PRIVACY POLICY.” You’ve pointed out that this disclosure has been there for 6 months. I’m a regular reader and I never noticed it. Not once. Why would I ever have need to scroll down past the body copy of the text, or further than the “Discuss” button? Most users will never see this disclosure, and certainly never realize there is even something to disclose. The separation of a triggering issue and the disclosure is an issue the FTC goes into detail about in the .com Disclosures Guidelines.

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As true as that is. It’s someone elses page.

It’s one thing to be on that page, on your own website. Something else when you’re that way as a guest, getting affiliate attention from the pageviews BB generates for your opinions by providing this platform, free of charge. But they’re the hypocrites. Ok.

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Undisclosed = undies + closed

I don’t see where it was disclosed that it was an official, ex cathedra response.

Thus, I think we should lube-up and lawyer the f**k out of this thread.

 

###FTFY

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It’s arbitrary because the FTC is supposed to protect consumers from predators like Standard Oil, not a small, relatively powerless group of bloggers.

It’s arbitrary because it’s an overreach: Boing Boing is not exploiting you (any more than you’re exploiting Boing Boing).

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THIS  

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