I've got a question about how the FTC guidelines effect affiliate links and such in blogs.
FTC Guidelines. I'm getting this one A LOT. There is way too much to say about this then I could say in a post here. Maybe I will do a full guest blog post somewhere (if asked) and go into more detail there. For now, I'm going to be short and sweet. As always, don't take this as legal advice for your specific situation. This is just my opinion, as I haven't been involved in an FTC action in years, they are a colossal pain to deal with.
For those who don't know, the main FTC guidelines that affiliates in the know are freaking out about now basically state (in layman terms) that any blogger/affiliate marketer that gets "compensated" (in our world, commissions/CPA) for referring business to a merchant must disclose their relationship and the fact that they are getting paid to send the buyer over. As most of you know, 90% of web surfers don't seem to realize there is a reason behind these referrals, and the FTC wants to protect some sheep.
Main thing you need to know, notice that these are always referred to as "The FTC GUIDELINES". That they are not called "The FTC RULES" or "The FTC LAWS" should tell you something. They are not, in themselves, legally binding. Meaning, you cannot be fined for not following them as long as they are merely guidelines, IMHO. By way of analogy, in the US , our roads have "speed
limit" signs, and they also have "suggested speed" signs (those yellow ones by curves, remember them?). Guess which one you can actually get ticketed for?
You cannot be susceptible to a "criminal" penalty (in this case, a fine) for breaking a "guideline". You can be subject to a penalty for breaking a law/rule/statute. As things stand, I'll bet a shiny quarter NOBODY will ever pay a "fine" for breaking these guidelines, at least not until they become codifed into official regulations.
THIS DOES NOT MEAN THE FTC GUIDELINES ARE A JOKE YOU CAN IGNORE!! Sure, they probably can't directly fine you for breaking their suggested "guideline" but they CAN just open an investigation under the FTC Act for "deceptive and unfair practices in commerce and misleading advertising". Trust me, those suck, you don't want to be there. The FTC "Guidelines" are: 1)an indication of where the actual "rules/law" are headed, so its good to start good-faith following them now anyways 2) are basically "safe harbor" details, if you try to follow them, you probably are not going to have to worry about the above-mentioned scenario of them going directly to a Deceptive Advertising investigation under the FTC Act. Yes, I know, they are vague as hell, but that actually
helps you, people get prosecuted/punished for the strict/well-defined stuff,
vague rules and guidelines tend to actually benefit the people/IMers at risk by making things cloudy.
An FTC spokesperson said (I can't find the link, PM if you have it) basically that these new guidelines are not "gotchas", they are not meant to surprise the unsuspecting webmaster and spring a trap on them, and no webmaster is going to "accidentally" run afoul of them. They are going to use this (at first) to go after the big fish that are willfully giving the finger to the FTC and are doing the most scandalous stuff possible. To use my brick-in-a-wall analogy from earlier, make at least a "good-faith" effort to demonstrate some sort of compliance with them. Whether that is a tiny 4-pt font disclaimer buried on an About Us page, or a giant flash banner at the top of all your LPs screaming "Hey Man, I'm going to get PAID if you click that link" is up to you and what your risk tolerance is.
OK, that was alot to say, and I still only barely scratched the surface. The FTC stuff probably needs its own blog post somewhere for me to get into any level of detail about the actual regs themselves. As always, the above is only my opinion. Nothing i say here should be construed as legal advice, or create an attorney/client relationship. Use at your own risk. Your mileage may vary.
