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News of the FTC crackdown on Internet Marketing is spreading like lolcatz wildfire. There’s more doom and gloom being blogged over the new guidelines than cable news has stories about, well… doom and gloom. So how about some good news! Contrary to popular belief, the sky(net) is not falling. Common sense will prevail. In fact, it kinda already has and from the least likely of sources.
The FTC – “Did I Do That?”
Ahh… there’s nothing like a govenment agency / legal system to completely misunderstand a situation. Wheter it’s Anderson Cooper beating FIMA to a disater location or the US Supreme Court coming to the defence of a spammer, they always seem to get things mixed up.
The FTC may have underestimated the confusion the new guidelines would cause, but they have been suprisingly quick to explain themselves and what reality will look like for those effected.
One of the biggest concerns was that (possibly) innocent online socialites would blog themelves into the now famous $11,000 fine. Not so, says the FTC’s Richard Cleland. In a Q&A with FastCompany magazine he said,
“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.”
You can read the rest of the brief Q&A here. If you’re feeling brave, you can read all 81 pages of the new guidelines here
My take on it? From what I see, nearly everyone is over reacting. In fact, if I’m foolish enough to read between the fines, the FTC seem to be telling people to chill out.
Points to consider:
- Federal agencies have always been able to interpret the law kinda sorta however they see fit. Obviously they are not above the law… but if they don’t like what your’re doing, they’ll hunt until they find a law you have broken. This has always been the case. Long before these new guidelines.
- The US had (and still has) some of the most lax advertising standards / laws / regulations in the western world. Yet there are many affiliates from the the UK, Europe and elsewhere that are doing just fine operating in far more restrictive environments.
- The newly released guidelines are just that… guidelines. They are not the law. Yes, they can / do play a role in court cases, but at the end of the day, we’re answerable to the law and not guidelines.
- The new guidelines are entirely untested. Clearly I am not an attorney, but reading through them, even I can see *many* reasons why anyone prosecuting will have an extremely hard time actually winning. Whatever new action the FTC takes, it will be against the big players becuase they will be looking to make an example of them. Big players can afford big lawyers. The outcomes will give the legal precedents for the kind of lawyers you and I can afford.
- I’ve read several doom and gloom opinions from actual Attorneys. On the face of it you’d think that an attorney would have an expert opinion. Here’s what you need to remember about Attorneys… They are Attorneys! Attorneys (thankfully) don’t actually think for themselves… they use case law to form opinions. Well, there isn’t any specifically relating to the new guidelines. Quite naturally they are being extremely cautious in the advice they are giving. They don’t want to end up with egg on there face, or even end up being sued.
- The FTC have flat out said that *no one* will be receiving a fine without first receiving a warning letter (and then some). If someone receives a warning letter, the FTC have said they will give them specific advice on how to correct the issue.
Here’s My Plan:
… and it’s not very different from what I’ve always done.
- Don’t be a butthead! In other words, don’t deceive people, don’t lie, don’t make up stuff.
- Be cautious if you use testimonials or make performace claims or your product or someone elses. Only use ones that don’t mention specifics. Think about the way that Coke advertises. At no point (in the last 100ish years) have they said they that Coke makes you pretty, or skinny or more likely to get… errm… lucky. But that is not the feeling you get from watching one of their ads.
- If you’re selling your own products take care of your customers. The FTC have said that invesigations are almost always the results of significant numbers of complaints. If your customer wants a refund… give it to them. For any reason and at any time. Wait until you literally cannot afford to give out any more refunds before you worry about denying refunds. Sounds insane, but unless your selling absolute junk, and you get unlucky, it’ll never come to that.
- Make sure you are incredibly contactable. Set up easy to find phone numbers / mailing addresses and support systems (zendesk / kayako / whatever). Generally speaking, people are blind / stupid. The last thing you want is someone complaining to the FTC (or anyone else), just because they couldn’t find your phone number. A PO box costs $10ish per month. Zendesk can be free. A real life human-being-receptionist can cost less than $50 per month.
- If you are making enough money to be able to afford an attorney, you should have an attorney. That’s basic business common sense. Chances are that if you can’t afford one, then you aren’t big enough to raise m/any red flags with anyone.
- If there’s a posibilty that you could receive money becuase someone clicks on a link you’ve posted, make sure you tell them. If you’re an affiliate, that should be every link you post =D. It doesn’t need to be overpoweringly overt (read: conversion killing). Until the FTC tells me otherwise, I will be amending my disclaimers, disclosures and TOS etc with legalese to that effect. Addionaly I will include a friendly, plain English prominant summary of what that means. The summary will also includes a link to the actual disclaimers.
To make it perfectly clear, I am not an Attorney. What you just read is not legal advice. In fact, it not advice at all. It’s the rant of some random guy on the internet. Don’t beleive a word he says. Certainly don’t take his advise. Rumour has it that he is drunk almost all of the time.
Feel free to let me know what I’ve missed and exactally how out of my mind I am in the comments below. I look forward to hearing your opinions and what you’re doing to meet the December 1st deadline.
