Monday, September 10, 2012

One simple reason I've ignored the paid reviews scandal

Reputation is an idle and most false imposition; oft got without merit, and lost without deserving.
(Othello, Act II, Scene 3)
Shakespeare could make an entire tragedy out of what happens when you're so focused on your reputation that you lose sight of what's really important. It seems that at least some authors may have fallen for the same trap, buying their way to a good name without earning it.

If you've been living in a cave for the past couple of weeks you may not know what I'm talking about. I'll explain.

On August 25, 2012 the New York Times ran a story revealing the existence of a service called Getting Book Reviews (GBR). GBR's business model is pretty simple: pay them and they will have people review books. Naturally only the positive ones get posted. So effectively this is a way to buy positive reviews of a book. Why would people do this? Because having lots of 5-star reviews helps sell books.

The story spiraled as it came out that apparently some big-selling authors have used this method to promote themselves: the NYT story references John Locke, the first million-selling author on Amazon, but there have been more discoveries in the past weeks. Other authors were discovered to have created accounts on various websites where, under pseudonyms, they would promote their own material and even fight with themselves to create false controversy, hoping to attract more attention and presumably sales. This latter practice is commonly-known as "sockpuppeting" and happens all over the Internet for all sorts of reasons. Wikipedia was particularly susceptible to it for a while and developed very elaborate protocols to address it.

I've not spent much time on this topic mostly because I think that other people have addressed it in great depth (see e.g. the Dear Author post I've put below). But I'm a bit surprised that there is any doubt whatsoever on the legalities because they seem pretty black and white to me.

I've previously written about the FTC Endorsement Guides on a few occasions but truthfully never thought of this as an example for a very simple reason: it's blindingly obvious. Whether you think book reviews in general are commercial speech (lower First Amendment protections) or expressive speech (higher protections), it's clear that a person reviewing their own book or sockpuppeting to create consumer interest in their book is engaging in a commercially-motivated activity. And so all the laws against engaging in deceptive trade practices apply.

The Guides don't leave a whole lot of ambiguity here. Section 255.5 starts:
When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.
I would think this pretty much ends the discussion.
  • Did a reviewer get paid to review a book? If yes then it's tough to see how they're not legally obligated to say so. That's a connection that might materially affect the credibility of their review.
  • Are you commenting about yourself or your work using a pseudonym? Are you doing this to preserve or create a reputation for yourself? If the answers aren't both no then again I can't see how this doesn't violate the Guides. That's a pretty strong connection between the endorser and the seller: they are the exact same person!
I'm not the FTC and I don't know whether they would intend to take anyone to task over this. But the sanctions are pretty severe: committing a deceptive trade practice under the FTC Act gives the FTC the right to seek penalties of up to $10,000 per violation of the Act, as well as an injunction to stop doing the bad thing. And this ignores consumer class actions on behalf of people who bought a book after the paid reviews went up: I'm not sure those lawsuits would work (not sure how you could show damages) but that's a real risk.

Looks like Othello wasn't the only one with something to lose.

(Full disclosure: the one book I've ever written to date has pretty much two categories of reviewers: people who hated it and my friends. It's pretty obvious which are which.)

Legal Minimum post on FTC Endorsement Guides
NY Times story on paid reviews:
Guardian article providing overview of paid reviews (in case you can't access the NYT):
Dear Author letter providing good analysis of paid reviews:
FTC Act section on deceptive trade practices:
Reviews for my own book:

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