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Analyzing Advertiser Liability for Blogger Reviews

By Ronald R. Urbach, Edward Kabak and Matthew E. Smith
November 30, 2014

This holiday shopping season, millions of Americans will look to their social media friends or favorite bloggers for advice when deciding which gifts to buy. And with over 42 million blog sites in the United States alone, there are plenty of “peer” opinions to consider. See, “State of the Blogging World” Infographic at Blogging.org. But are consumer-generated product-related reviews or commentary always the mere opinion of the person posting them, as many readers may believe? What if the company whose product is the subject of the review had, in fact, exerted such influence over the reviewer that it affected what was written, turning a seemingly personal post into something more akin to advertising?

There's no question that in today's consumer marketplace, digital “word-of-mouth” reviews are a major influence on the purchasing decision. This new reality was expressly recognized by the Federal Trade Commission (FTC) when it released its updated Guides Concerning the Use of Endorsements and Testimonials in 2009 (the Guides), 16 C.F.R. '255. The FTC included examples in Guides that made it clear that the FTC believed its authority to regulate commercial speech extends into a consumer's personal posts when a certain type of quid pro quo relationship between the consumer and advertiser exists. In the opinion of the FTC, when a benefit from the advertiser is exchanged for a positive consumer review, that consumer's post should no longer be considered merely to be her personal opinion, but instead must be seen as an endorsement and an advertising message, and subject to '5 of the FTC Act, 15 U.S.C. '45.

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