Coordinators

Other Contributors

About Us

www.clpblog.org

The contributors to the Consumer Law & Policy blog are lawyers and law professors who practice, teach, or write about consumer law and policy. The blog is hosted by Public Citizen's Consumer Justice Project, but the views expressed here are solely those of the individual contributors (and don't necessarily reflect the views of institutions with which they are affiliated). To view the blog's policies, please click here.

« New Jersey School Board Subpoenas Citizens Who Criticize Its Staff to Sue Them for Defamation | Main | Article on Bank Charging Fees to Pay Checks Drawn on Its Own Accounts »

Friday, October 16, 2009

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451b7a769e20120a644acf3970c

Listed below are links to weblogs that reference Do the FTC's New Advertising Guidelines Run Afoul of Section 230?:

Comments

Peter Jones

Who cares anyway? The FTC has just stated basically that the new guidelines won't be used to go after bloggers and don't have the force of law. That's the FTC saying that it doesn't want deference for its own guidelines. Talk about wimpy regulation!

Paul Levy

Peter, I think you have misread what the FTC has said. What I have seen is the FTC saying that it is not going to go looking for bloggers against whom to take enforcement actions, and indeed that its enforcement emphasis is not the bloggers but rather the companies that are paying for misleading blog posts in lieu of advertising. For example, http://legaltimes.typepad.com/blt/2009/10/ftc-.html

Eric Goldman

Thanks for the thoughtful response, Paul. As I indicated in my second blog post, I don't see how the advertiser-blogger relationship could possibly fit any traditional characterization of respondeat superior. And to the extent the FTC wants to manufacture a "new" basis to impose respondeat superior to online content publication(i.e., something beyond traditional agency law), I think Congress' enactment of 230 plainly precludes the FTC from doing so. Eric.

Hayden Frost

I absolutely agree with Paul -- 230 provides no immunity from the FTC imposing this kind of liability. 230 was intended to limit vicarious liability so that service providers wouldn't get pummeled when their users did something the provider had little or no control over. But that's not what is happening here.

First, defendant's counsel would have to successfully argue that the ad agency is an "interactive service provider" under the CDA. While banner ads themselves might qualify, I think it's definitely arguable that actively soliciting bloggers to submarine product placement does not make the advertiser an "interactive service provider" under the meaning of the statute ("any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server").

But even then, 230 does not actually create "immunity" -- it merely states that the service provider is not treated as the publisher. The "immunity" is just an implied byproduct. When Joe Anonymous randomly makes a defamatory comment on X-Site, 230 obviously applies. Assuming the ad agency is a service provider under the CDA, when the agency actively seeks out a blogger to submarine some product placement, it's a joke to argue that 230 somehow negates respondeat superior entirely. After all, if Eric's argument was correct, an entity could easily go out and pay users to commit other torts (lets say defamation for example), and under Eric's rationale, 230 immunizes this entity. Not only is that irrational, I don't think 230 nullifies respondeat superior entirely -- it just means there must be more action than merely opening the doors for people to use the service.

At the same time, I will make a concession to Eric's argument. If an ad agency was to set up a system where random people could indiscriminately get paid 3 cents to tweet "I love my Brand-X widget", it would be much harder to argue that's NOT an interactive service provider (under the intent of the statute), than if the agency actively sought out 10 bloggers and solicited product placement deals.

David hogard

hanks for thoughtful topic I think it's definitely arguable that actively soliciting bloggers to submarine product placement does not make the advertiser an "interactive service provider" under the meaning of the statute ("any information service, system, or access software provider that provides or enables computer access by multiple users .


[note: spam commercial links deleted]

The comments to this entry are closed.

Subscribe to CL&P

RSS/Atom Feed

To receive a daily email of Consumer Law & Policy content, enter your email address here:

Search CL&P Blog

Recent Posts

November 2014

Sun Mon Tue Wed Thu Fri Sat
            1
2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
30