Author: Chian Kee | Date: 13 December 2013 | Please Comment!

I once heard a (possibly apocryphal) story that when televisions first found their way into people’s living rooms, consumers didn’t fully appreciate the difference between the advertisements and the news bulletins between which they were interspersed.  Such initial confusion no doubt led to the old adage “Don’t believe everything you read” evolving into “Don’t believe everything you see on TV”. Some might argue that, in the case of new media, we should have already learnt this lesson from history.

lincoln

 

In November this year, the ACCC released some guidelines called: “What You Need To Know About: Online reviews – A guide for businesses and review platforms”.  The guidelines are centered around three “guiding principles”:

  • Principle 1: Be transparent about commercial relationships
  • Principle 2: Do not post or publish misleading reviews
  • Principle 3: The omission or editing of reviews may be misleading

Contrary to almost every write-up I have seen about these guidelines so far (except this one), these guidelines don’t actually change the law – the don’t even comprehensively state the existing law.   That said, when you’re the regulator, you don’t have to change the law to change the game and most bloggers probably won’t want to be the High Court test case to see whether inserting #spon at the end of their tweets is enough to avoid prosecution.

If you’re interested in a very comprehensive and sensible overview of the guidelines, head on over to my friend Melbourne Gastronome, who is a generally comprehensive and sensible person.

As you’re still reading this blog, I assume you want something other than comprehensive and sensible.

I’m a blogger, what do I have to do?

One of the difficulties I have with the ACCC’s guidelines is that it was clearly drafted to be most relevant to consumer review sites like Yelp and Tripadvisor and the businesses that are featured there.  Assuming you don’t run one of those sites some aspects of the guidelines may seem ill-suited to the realities of your day-to-day blogging experience.  In these circumstances, it may be necessary for you to look at the laws sitting behind the guidelines and make some judgment calls about whether your blogging practices are likely to receive a thumbs-down from the ACCC.  This would be worth your while, because while the prohibition on misleading or deceptive conduct doesn’t come with any fines, there are a raft of other prohibitions that do (such as false or misleading representations in connection with the supply or promotion of goods or services, which carries a maximum $1.1 million penalty per contravention).

Still couldn’t be bothered?  Here are a few areas that I wish the guidelines addressed, and my own personal this-is-not-legal-advice take on how bloggers and blog readers alike should approach them.

Is this blog post a review?

Given that the guidelines are about online reviews, it’s a shame that it doesn’t actually define the word “review”.

If you’re a food blogger, a beauty blogger or maybe even a travel blogger, your blog is likely to consist mainly of product and place reviews – so it should be pretty easy to tell when you’re reviewing a business and when you’re merely sharing your grandma’s recipe for shortbread or facial masks – or shortbread facial masks (patent pending).

For other kinds of bloggers, like fashion bloggers, mummy (or daddy) bloggers or the ubiquitous here’s-what-I-did-yesterday bloggers, your blog is likely to be a mixture of review, implicit endorsement, narrative and photos of things that you may or may not have paid for.  In my view, the standard of disclosure that the guidelines suggest go beyond what the law requires, particularly when applied to certain kinds of bloggers.  So here’s my handy rule of thumb for figuring out if these guidelines apply to your next blog post.

It’s a review if:

  • You’re expressing an opinion, whether positive, negative or indifferent.  Merely posting a photograph of something or mentioning that you were at a particular place shouldn’t be considered a review of that thing or place.  Of course, context matters.  If your blog is called “Photos-of-things-that-I-recommend-that-you-buy.com” then pretty much everything you post is a review.
  • You’re an authority or influencer in a field.  Along the lines of the “context” point above, if you have a blog that mainly reviews things, or you are otherwise known as a thing-reviewer, you probably need to be extra careful about the things that you’re seen to be endorsing.  That said, many celebrities don’t pay for most of the things that they’re seen with, but no-one ever expects them to walk around with a #myclient hashtag emblazoned on their forehead.
  • You’re getting paid to say something about a brand or business.  Even if they’re making you say something that doesn’t sound like a review, if they’re a serious business you know they’re not doing it for poops and giggles.

There are, however, things that I don’t think should count as a review or endorsement, despite the fact that it might feature freebies or existing commercial or personal relationships:

  • You post a picture of a product or place, but not in the context of talking about it.  My last post on baby burning featured photos of two items of baby clothing.  We received both items as gifts, one from the brand that makes it. I actually really like both garments, for different reasons, but that post didn’t express a view.  Merely making your readers aware of a product, without anything else, is not a representation about its quality and isn’t, in any sense of the word, a review.
  • You got a freebie that’s not for sale.  Cecylia’s last video post was filmed at the Hawthorn Arts Centre.  She was allowed to play their Steinway without charge and asked for the opportunity to do so.  Should she have put a “sponsored post” disclaimer at the top of her post? I vote no.  Arguably, the City of Boroondara is receiving some free brand exposure because of it, but if everything in the background that you didn’t pay for is sponsorship, then every photo taken in a public place is likely to be sponsored (or taken without permission) – and that’s just dumb.

This is a huge issue for fashion and beauty bloggers who are likely to have piles of freebies that might be used repeatedly for years after they’re no longer commercially relevant.  If the guidelines were written for bloggers, I would expect them to focus more on the critical issue of whether a consumer might be led into error based on the blog post.  To me, this comes down to whether the incentive or gift affected the blogger’s words or conduct in any way.  If the gift is given with strings attached, you need to disclose those strings.  If you have 200 shades of lipstick and 100 of them were freebies, the fact that you pick one of them on a particular day doesn’t make that day sponsored or misleading.

How to be transparent without having to take off all your clothes

invisible-man

Principle 1 in the guidelines is “Be transparent about commercial relationships“.  I really don’t like the word “transparent”.  It’s purely metaphorical and sprinkled unhelpfully around the Australian Consumer Law.  If you’re from the Office of Parliamentary Drafting Counsel [edit: thanks Evane] – why not just use the word “clear”, that way you can arguably have your metaphorical cake and also eat your literal-definition cake too. (See how unhelpful metaphors are?)

For most consumers writing on a review site, or companies running such sites, some degree of translucency is probably achievable.  For a blogger this can be really tricky.  This is because certain kinds of bloggers tend to have relationships with PR companies and as I am married to the most awesome fashion blogger ever we have commercial and personal relationships with more brands and PR representatives than I previously thought existed.  I count many of them as my friends.  I’m not saying that to brag – ok, just a little – but for us to be completely transparent about the various relationships that might relate to what I say would require more meaningless rambling disclosure (because I don’t do any other kind) than review.

This issue is exacerbated by the part of the guidelines that says that review platforms need to disclose commercial relationships even when they have no effect on the review.

Here it is in context:

Guidance - disclosure

That might make sense for a disinterested review platform, but how do bloggers, who operate their own publishing platform, comply with such a suggestion?

I say:  they don’t have to.  If your commercial relationships have no effect on what you’re writing then how can an otherwise genuine statement become misleading? (Exceptions apply, for instance, if the thing you’re writing is “I have no commercial relationships”.)  You might want to disclose such relationships because it builds trust and can sometimes even add a sense of legitimacy – but requiring it goes beyond what the law requires and what would be expected in other industries such as print media and television.  Can you imagine if Fairfax had to disclose at the top of every article every commercial relationship that related to the content of that article?

Don’t be misleading

I agree with Principle 2.  Don’t publish misleading reviews.  You don’t need guidelines to tell you that – it’s just the law.

Blog readers – be less gullible.

Ultimately, my problem with the increasing regulation of personal online publications is that we’re looking at just one end of the problem.  The internet is global, decentralised and full of things that are just plain wrong (examples of “wrong” exist in every sense of the word).  Just as television ad breaks no longer have to be preceded by “And now for a word from our sponsors” the viewing public needs to understand that some sources on the internet are more accurate than others.  This means that if you choose to spend your hard earned money on the basis of the “I’m feeling lucky” search on Google you’re voluntarily accepting some risk that the first site you come across might be mistaken or biased or simply ill-informed.  Eventually, it is the publishers that don’t abuse their readers’ trust that will survive.  Suggesting that the conscientious publishers comply with onerous rules while the crazy and malicious ones run free will just lull the Australian consumer into a false sense of security.  Instead we all need to learn, and teach our kids, who to trust online.

After all, Abraham Lincoln said so.

 

2 Comments in the fine print. Add yours!

  • Evangeline 3:01 pm on December 31st, 2013

    Great post Chian – and so is your blog! Looking forward to seeing what you come up with in the new year too.

    PS the Commonwealth drafting agency is the Office of Parliamentary Counsel, not ‘Drafting’), and I would interpret ‘transparency’ differently from “clear”. Transparency is like accountability, whereas “clear” = clarity = drafting that is clear and not complex (see the Clearer Commonwealth Laws initiative http://opc.gov.au/clearer/index.htm). Given the context not surprising that ‘clear’ was not the term that was used.
    My $0.02.

  • Chian 3:23 pm on December 31st, 2013

    Thanks – reference to OPC fixed! I’ll need to fire my subeditor.

    I completely agree that transparency carries a connotation of permitting accountability, but it’s not always used that way. For example, in the unfair contract terms regime a “transparent” term is one that is “expressed in reasonably plain language, legible, presented clearly and readily available”. That sounds like “clear” to me.

    In the context of a disclosure of commercial relationships, “transparent” to me means full disclosure (if something is transparent, you can see everything going on behind the scenes) – which I think is too high a standard to hold bloggers when it’s not the standard to which we hold virtually all other forms of (much more lucrative) publishing. Clear disclosure on the other hand (ie, disclosure that your readers can read and understand) would be a better and more appropriate standard IMHO.

    I see your $0.02 and raise you $0.02.