New F.T.C. Guidelines May Mean Less Freebies

The F.T.C. has released new guidelines concerning the use of endorsements and testimonials in advertising to adapt to a world where bloggers and social media sites may have as much influence, or more, on a consumer’s decision to buy a specific product than a television advertisement.

Starting December 1, 2009, bloggers reviewing products on their blogs will have to disclose their connections with advertisers, if any.

From the FTC press release: The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.

Le cimetière des Blogs

En l’honneur de All Soul’s Day, voici un blog qui nous permet d’enterrer nos blogs...

Nannies, Blogging, and Section 230

The New York Times has an interesting article today about isawyournanny , a blog where people can post about a “nanny sighting” that triggered them to share their experience, whether the nanny was a regular Mary Poppins or abusive to the child.

As pointed out in the article, posting on the site raises both privacy and defamation issues. “Jane Doe” , who runs the site posted this disclaimer. Under common law, a distributor is liable where he knows or has reason to know that the content he distributes is defamatory. But section 230 (c) of the CDA states that providers of interactive computer services shall not be treated as the publisher or speaker of any information provided by another information content provider, and are immune from liability for content created by third parties.

See the EFF Internet law Treatise on section 230 here.

A content provider is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet." A content provider is not protected by the section 230 immunity. Here, the site encourages to "report bad nannies."

In Fair Housing Council of San Fernando Valley v. Roommates.com LLC, Judge Kozinski, writing the opinion for the 9th Circuit wrote last May:

"Imagine, for example, http://www.harrassthem.com/ with the slogan “Don’t Get Mad, Get Even.” A visitor to this website would be encouraged to provide private, sensitive and/or defamatory information about others – all to be posted online for a fee. To post the information, the individual would be invited to answer questions about the target’s name, addresses, phone numbers, social security number, credit cards, bank accounts, mothers’ maiden name, sexual orientation, drinking habits and the like. IN addition, the website would encourage the poster to provide dirt on the victim, with instructions that the information need not be confirmed, but could be based on rumor, conjecture or fabrication.

It is not clear to us that the operator of this hypothetical website would be protected by the logic of Carafano. The date match website in Carafano had no involvement in the creation and development of the defamatory and private information; the hypothetical operator of harrassthem.com would. By providing a forum designed to publish sensitive and defamatory information, and suggesting the type of information that might be disclosed to best harass and endanger the targets, this website operator might well be held responsible for creating and developing the tortuous information. Carafano did not consider whether the CDA protected such websites, and we do not read the opinion as granting CDA immunity to those who actively encourage, solicit and profit from the tortuous and unlawful communications of others."

If isawyournanny encourage denouncement, and indeed it is the site purpose, even though a few posts praise wonderful nannies, should this site still be protected by section 230? The 9th Circuit seems to answer in the negative.

Reporting child abuse is certainly something everybody should do if witnessing it, but should we not report it to the police? The New York Times article describes an instance when a woman witnessed a nanny hitting a child repeatedly. She followed the nanny for 30 minutes until she entered an apartment building, then reported what she saw to the doorman of the building. If witnessing a child being hit, isn't more efficient to call 911, and report it immediately?

Roundtable on legal blogs

A roundtable on legal blogs cosponsored by The National Law Journal and the Association of American Law Schools.

Museum Blogging

A forthcoming exhibition at the Metropolitan Museum of Art's Costume Institute will be named blog.mode:addressing fashion. Visitors will be able to use a "blogbar" to share their opinions about the exhibit. Curators will read comments daily and respond to them, engaging thus the dialogue.

The show will feature pieces recently acquired by the Costume Institute, and will include clothes and accessories designed by contemporary designers such as Helmut Lang, Donna Karan and Miguel Androver.

Guide des Blogs des Avocats Français

Ce site du Conseil National des Barreaux est un guide des blogs écrits par des avocats français. Certains ne sont encore qu’à l’état de projet. À suivre…

Bloggeurs & Loi

Via précisemment.org, une présentation concise des responsabilités des bloggeurs par Benoît Tabaka.

Lawyers & Blogs

An article by Susan L. Ward (New Jersey Law Journal) about what blogs can do for lawyers on law.com.

You can also view a previous lawline.com show on the same subject (scroll down).

Video bloggers in Europe

I live to watch the new Zazon video every week. The video are candid camera style, but this week, the author commented that it is not so difficult to film, as it is to obtain the droit à l'image. The droit à l’image is not expressly mentioned in any French codes or laws. It is judges who built it by interpreting articles of the Code civil and of the criminal Code. Article 9 of the civil Code declares that everyone has the right to have his private life respected. However, “private life” is not defined, and that vagueness allowed the judges to build the droit à l’ image doctrine. Article 9, coupled with the article 1382 of the civil Code, which is the fundamental article for civil tort claim in French law, creates an action against whomever would not respect somebody else’s private life. There is no need to prove damages, the mere violation of someone private life is enough.

Video bloggers may be soon considered as television programmers in the European Union. I will find out more about it soon.