More on ethics, criticism and paying the bills, adding the FTC this time

Rhonda Shearer of called earlier this week in response to my previous post on who pays for things reviewed by critics to remind me of the Federal Trade Commission’s rules on the subject.

I wrote about these rules in 2009, and should have acknowledged them in my piece earlier this week. In summary: The FTC said that online writers who accept freebies or payment from businesses they review must disclose that in their posts. The rule does not apply to those employed by “old media” news organizations or freelancers working on assignment for them.

Advertisers and bloggers aren’t the only people responding to these rules. I’ve heard from my theme park website correspondents that Busch Gardens in Tampa, Florida has asked online reporters attending its press events to sign a statement acknowledging that they will mention in their posts that they attended the event at the park’s invitation, in order to protect Busch Gardens’ corporate parent, SeaWorld Parks & Entertainment, from action under the FTC rules.

As much as I’m uncomfortable with the idea of agreeing upfront to include something in coverage as a condition of access, I absolutely see Busch Gardens’ point. Any organization inviting online reporters to cover an event or product has to take steps to protect itself in this legal environment. Personally, I think it’s a good idea to note when a review of coverage is of a press event, or a sample prepared for and sent directly to the press. Such products and events are’t always representative of what a consumer might buy off the shelf or get when he or she visits under “normal” operation. That’s why I’ve permitted my correspondents to sign such agreements, and gone ahead with such disclosures.

The FTC has been taking action on its rules, reaching settlements with some advertisers. The FTC seems especially to be focusing on retailers using online affiliate marketing, where publications are paid a commission on each sale to its readers.

In order to comply with FTC rules, an online publisher must note when it links to a product or service from which it will get a commission on a sale. Again, I think that’s good practice. In my experience, such notes actually have increased sales, and commissions. Loyal readers want to help their favorite websites, and such notes encourage them to click through and do their shopping there, since they know that part of their purchases will go to support a site that they believe in. In this case, disclosure not only helps keep readers informed, it pays off for the publisher.

Publishers must take care when disclosing affiliate links, however. Do not forget that if you are also using Google’s AdSense program, Google prohibits its AdSense publishers from explicitly drawing attention to and encouraging links on its ads “in order to avoid potential inflation of advertiser costs,” as Google’s suggested disclaimer says.

Obviously, a disclaimer on affiliate links draws attention to them. So it’s probably best not to run affiliate links in rotation with Google ads in the same place on your page templates, unless you can modify the template to show the disclaimer only when an affiliate link runs in that place, and not when a Google ad shows there.

And, for the record, I still think it stinks that online publishers are subject to these rules and newspaper and broadcast reporters and critics are not. Disclosure’s always a service to traders, provided that it’s done in an elegant way that informs the reader without bogging down the narrative of a piece. (Oh, to live in a world where we leave the writing to the writers, and not to the lawyers.)

So if you’re a reviewing a movie during a free screening at the studio lot, let us know that. If you’re sailing on a media-only cruise, don’t allow readers to believe that it was a regular, public sailing. If you’re reviewing a hotel on the newspaper’s dime, print that the newspaper paid for the trip. Be explicit. It shouldn’t matter whether you work for a newspaper, a website, another company or yourself. If you didn’t pay out of your own pocket for whatever you are reviewing, you should tell your readers who did.

Let’s count this as my vote to change this rule of journalism ethics. Instead of demanding “that the employer always pays” (because it doesn’t), let’s instead demand that “when the writer doesn’t pay, we tell the reader who did.”

Online publishers can't afford to remain politically neutral

Once you make the transition from newsroom reporting to website publisher, you’ve added a long list of responsibilities to your daily work. There’s the technology of publishing a website and managing a readership database. There’s metrics – tracking who is reading the site, from where and for how long. There’s money, both on the expense side and earning income. You might be selling ads, invoicing advertisers, tracking campaigns, or soliciting grants, completing reports and managing a non-profit board.

With all of those extra responsibilities, do not forget about one other – one that directly conflicts with what you were taught as a reporter, but is nevertheless a responsibility that’s vital if you are to remain in business successfully.

You’ve got to get active, politically.

Decisions made by elected officials determine what information you can access, as well as who can access your publication, and how. They determine how much you pay in taxes, what infrastructure supports your business, as well as the same for your competition.

That’s why the news industry, for generations, has actively lobbied lawmakers to ensure that their decisions either help or at least minimize the harm to its companies.

But as an independent news publisher, you cannot rely on news industry lobbyists and established industry voices to represent your interests. Remember, those newspapers and broadcast and cable stations are your competition now. One characteristic of the environment that they are attempting to have government create (or maintain) is one in which it is difficult, if not impossible, to launch and grow successful competition to their businesses.

Fortunately for your current endeavor – though perhaps not for your former job – the news industry slept through that challenge in the 1990s, allowing the commercialization of the Internet in ways that made such competition inevitable.

But Big Media is fighting back now. Witness the attempt to gut “net neutrality,” the ability of the U.S. federal government to prohibit carriers from given traffic to certain parts of the Internet preference over traffic to other sites and services. A federal appeals court struck down the FCC’s ability to do that this week, potentially eliminating legal restrictions against Internet Service Providers demanding payment from you to allow your current readers future access your website.

As an independent news publisher, it is now very much in your economic interest to get on the phone and call your representatives in Congress, to ask that they make net neutrality a federal law, and to give the FCC the power to regulate ISPs on this issue.

It’s also in your interest as a reporter to get involved in local and state decisions about access to public records. In the Internet era, there’s a huge difference between “public records” that are available 24/7 on a public server in comma-delimited format, and “public records” that are available between 11am-1pm Mondays in a courthouse office, for physical inspection by someone not in possession of any electronic recording device.

Which type of public document would you rather deal with in your reporting? Remember, you can’t always count on your former colleagues in the traditional news industry to represent your interests here. With a newsroom of reporters who know shorthand, but no computer programmers on the newsroom staff, it’s conceivable that a newspaper publisher might not have a problem with the second option described above, and decline to push hard for legal changes to make the first a reality.

As an aspiring leader in your community, you should also take public stands on issues that affect the well-being of your community, whether they be school bond issues, commercial development plans or the police department budget. Whatever a newspaper publisher would have gotten involved with in the past, you, as a news website publisher, should consider taking on now. (See Amy Gahran’s excellent piece for KDMC’s News Leadership Blog, Going on the record: Civic engagement is for journalists, too!.)

Of course, that newspaper publisher assigned different employees to handle all those different tasks, and you might be going it alone now. But that’s no excuse to disengage from the political process that affects your livelihood… as well as that of the entire community you aspire to cover, and by doing so, represent.

So you will have to find a way to disclose what you do – to make clear to your readers what is reporting, what is advocacy and how one affects the other (or not). But don’t ever be afraid of losing credibility by engaging. I suspect that you’re more likely to put your credibility at risk if you fail to stand up for yourself and your readers. No one wants to follow a wimp.

So engage in local politics when you need to. And engage with your readers to let them know why you’re doing that, and how they can do the same to protect their interests.

After all, a community that’s engaged in its political process is one that going to want to read more about that process… building a larger potential audience for journalists’ work.

See, I told you that political engagement would serve your business’ interest!

Freedom of the press ought to belong to all… not just to approved 'journalists'

Can you do journalism and not be a “journalist”?

Do people declared “journalists” get special speech and press rights that other American citizens do not enjoy?

Can anyone enjoy the right to free speech and free publication, even if that individual is not a full-time professional reporter?

These are some of the important legal questions that American politicians and bureaucrats must confront now that the Internet has made possible for people other than employees of major media companies to reach large and widespread audiences.

In recent weeks, federal officials seems to be favoring a view that certain individuals enjoy more speech and publication rights than others. New regulations from the Federal Trade Commission and a proposed federal shield law create legal double standards for individuals creating information for the public – one for employees and contractors of media companies and another for everyone else, including self-employed publishers.

This split calls into question what the First Amendment means, and whom it was intended to protect. Henry Mencken famously said that “freedom of the press is limited to those who own one.” [*Update: Jay Rosen tweets that the correct source of the quote, “freedom of the press is guaranteed only to those who own one” is A. J. Liebling. Citation here.] But with the Internet making a “press” available to anyone for free, does that “press” have to be of a certain type, or reach a certain number of people, to qualify for First Amendment protection?

The FTC this month published new regulations on the disclosure of advertiser-sponsored messages which could force bloggers and other independent publisher to publicly disclose every book, CD or sporting event admission that they receive in the course of their work, or face thousands of dollars in fines. Yet the FTC explicitly exempted offline, established media publishers from the new regulations.

Book blogger Edward Champion interviewed Richard Cleland of the FTC’s Bureau of Consumer Protection last week, prompting an evisceration of Cleland’s remarks by DailyKos’ Markos Moulitsas. Mark Cuban also publicly mocked the FTC rules.

Personally, I would love to see a strong crackdown on deceptive advertising. Businesses should not have the right to mislead the public by paying other parties to republish specific advertising messages, without disclosing that they are paid ads.

But the Supreme Court has granted First Amendment free-speech protection to quite a bit of commercial speech. And there’s a huge difference between paying a blogger to republish a specific commercial message and sending another blogger a free MP3 of a new music track to review.

The FTC should recognize that difference. Cleland’s remarks and its own guidelines (see page 47), however, suggest that the commission’s leadership remains oblivious. The concept that bloggers can cover their beats critically, and not merely as shills, seems lost upon the FTC.

I do not believe that the purposed of the First Amendment was to provide legal protection to specific class of corporations, namely, newspaper companies. The intent was, and should continue to be, to empower the people of the country, collectively and as individuals, to keep a watchful eye on their government and communities, and to speak in advocacy of their beliefs.

The Internet has fulfills the Founders’ promise of a free press to the people. No longer is “freedom of the press” limited to an elite few, as was the case in Mencken Liebling’s day. People who have devoted their careers to reporting and publishing news should welcome this functional expansion of the First Amendment, providing us millions of new potential allies, engaged in our communities. A handful of clueless bureaucrats in the FTC should not be empowered to stand in their way.

Nor should established news organizations welcome what the FTC is trying to do. Unfortunately, the New York Times has, writing in an recent editorial:

“This is a matter of principle, not medium, and the new rules are not an excessive burden. The guidelines state that endorsers must disclose payments in cash or in kind from companies whose products they endorse. Telling a commentator flogging a product online to disclose commercial ties does not constitute a challenge to free speech.”

I welcome reading the Times’ movie critics noting in each of their reviews how they saw that film for free. And for the Times’ book critics doing the same for the books that they review. I suspect, however, that will never happen. Why? Because the new rules are a matter of medium, and are not an excessive burden only to those, like the New York Times, who have been exempted from following them.

Here’s hoping that Congress strikes down the FTC rules before they take effect. Or that a deep-pocketed blogger, such as Cuban or Kos, takes on the FTC in court, not leaving that task to middle-class online journalists who lacks the bank account to challenge the feds.

There ought to be no special class of citizen called a “journalist.” Anyone who does journalism, even if for just a moment in their lives, ought to enjoy the protections of the First Amendment when they choose to speak or to publish. Otherwise, we are ceding to unelected corporate employers the power to determine who gets First Amendment rights, or not.

Freedom of the press belongs to all Americans, and not just to the newspaper industry – despite what the FTC and the New York Times would have you believe.