Many are asking whether the FTC is really going to sue bloggers and other users of social media. The short answer is "probably not," but no one can say for sure. In a series of recent interviews with Internet publications, FTC staff have bent over backwards to downplay the risks to bloggers and, by implication, other users of social media. For example:
- The Blog of LegalTimes interview with Mary Engle, Associate Director of the FTC Bureau of Consumer Protection: "We are not going to be patrolling the blogosphere," she said. "We are not planning on investigating individual bloggers." . . . When it comes to making law enforcement decisions, . . . she said the FTC will go after the cases that are black and white. "We’re not interested in playing gotcha in the gray areas."
- CNET interview with Richard Cleland, Associate Director of the FTC's Advertising Division: "As a practical matter, we don't have the resources to look at 500,000 blogs," Cleland said. "We don't even have the resources to monitor a thousand blogs. And if somebody reports violations then we might look at individual cases, but in the bigger picture, we think that we have a reason to believe that if bloggers understand the circumstances under which a disclosure should be made, that they'll be able to make the disclosure. Right now we're trying to focus on education."
- Fast Company with Richard Cleland: "That $11,000 fine is not true. Worst-case scenario, someone receives a warning, refuses to comply, followed by a serious product defect; we would institute a proceeding with a cease-and-desist order and mandate compliance with the law. To the extent that I have seen and heard, people are not objecting to the disclosure requirements but to the fear of penalty if they inadvertently make a mistake. That's the thing I don't think people need to be concerned about. There's no monetary penalty, in terms of the first violation, even in the worst case. Our approach is going to be educational, particularly with bloggers. We're focusing on the advertisers: What kind of education are you providing them, are you monitoring the bloggers and whether what they're saying is true?"
"Is the FTC planning to sue bloggers? Well, let me put it this way. That is not why we issued this guidance. We issued this guidance to make it clear that everybody should be playing by the same rules, whether you're a professional reviewer or an amateur reviewer. Just be up front about the connections you have and any conflict of interest you might have with the company."
As heartening as these messages may be, they don't mean it is OK to simply disregard the Guidelines. In the end, it is up to the discretion of the FTC staff whether or not to bring an enforcement action, and none of these public statements bind them in any formal way. One of the fiercest objections to the Guidelines has been that they are written broadly to encompass all sorts of conduct, leaving to the FTC the decision whether to go after technical violators. On the other hand, some level of prosecutorial/agency discretion is common to all U.S. law enforcement.