Do you know more about endorsements than large companies and law firms?

Bloggers and other reviewers all seem to know they need to pay attention to the FTC Endorsement Guides. Maybe large companies haven't quite gotten the message? That seems to be the suggestion of at least one Federal District Judge.

Some background. Google and Oracle have been going at it for a while about whether Android infringes on software copyrights patents owned by Oracle and implemented in Java. Google came out (mostly) the victor. But there's some post-trial matters still to be addressed and so the trial judge, Judge William Alsup in the Northern District of California, still has jurisdiction over the case.

In an order handed down on August 7, Judge Alsup ordered each of Google and Oracle to produce a statement "clear[ly] identifying all authors, journalists, commentators or bloggers who have reported or commented on any issues in this case and who may have received money (other than normal subscription fees) from the party or its counsel during the pendency of this action."

If you've read any comments on the FTC Endorsement Guides, these issues should sound familiar. (If not, I've helpfully put a link to a prior post in the footer.) But this goes far beyond bloggers, and it's not under the jurisdiction of the FTC. And it's likely to be much more important.

How Osama bin Laden's death created litigation for an NFL star

Loose lips sink ships, as the Cincinnati Bengals have recently discovered when their coach banned use of Twitter by players so they wouldn't give out secrets like details about their injuries. But sometimes they sink endorsement deals and launch litigation. Rashard Mendenhall of the Pittsburgh Steelers found that out the hard way, and his situation has some lessons for people who sign deals to endorse products.

By the way, you may not think that you've got anything to worry about here. But do you run a blog? And do you have a deal with publishers or other companies to supply you with content to review? If so, then these tips apply especially to you.

In 2011, after Osama bin Laden was killed in Pakistan by the US military, Mendenhall took to Twitter. And unlike many people whose comments were positive, Mendenhall went a different direction:

What kind of person celebrates death? It's amazing how people can HATE a man they have never even heard speak. We've only heard one side...

Endorsements and Twitter: a precautionary tale from Kim Kardashian

Kim Kardashian and Rashard Mendenhall aren't just two names you never thought you'd see in the same sentence. They are also involved in two of the more unusual (to date) lawsuits involving endorsements and Twitter. And each of these situations has implications for people who use Twitter. And if you don't think you make endorsements: do you review products online? Do you get free review copies of anything? Recommend people's books on Twitter?

If yes, keep reading

First, let's talk about Kim Kardashian. (It's what she'd want.) In 2009 a company promoting something called Dr. Siegal's Cookie Diet delivered a package of cookies and shakes to her publicist.

This kind of thing isn't as rare as you might think. Once, I was at the home of a minor celebrity and he had cases of Coors Light everywhere. I asked him what's up with the Silver Bullet and he said he has no idea, they just show up every now and then. I mentioned it to a marketer I know and he told me about the practice of seeding, where companies just send their products to celebrities in hope that the celebrities will talk about using them and give them free PR.

Siegal's claimed that they delivered the package because an article had said Kardashian had tried their products and liked them. Let's assume that's true, even though Siegal's never did provide evidence of what article this was. Presumably they were hoping she would tell people she liked them (again?). If so, that's not quite what happened. Instead she never talked about them, but Siegal's did: they put up a link on their website to the article I mentioned above.That got Kardashian's lawyers attention, eventually, and they sent a letter to Siegal's requiring them to take down the link. Siegal's did take down the link, but afterward they found out that Kardashian had tweeted about their product twice:

• “Dr. Siegal’s Cookie Diet is falsely promoting that I’m on this diet. NOT TRUE! I would never do this unhealthy diet! I do Quick Trim!”
• “If this Dr. Siegal is lying about me being on this diet, what else are they lying about? Not cool!”

Noting that she hadn't disclosed that she is a paid representative for Quick Trim in those tweets, Siegal's promptly sued Kardashian for defamation. And although the file settled in 2011, this situation teaches several lessons that are important today:

1. If someone seeds you with product, find out where it came from. And if you don't want to take the risk of a fight later, send it back today. You're always at risk of being sued if you say the wrong thing in today's America, but be especially careful when you're dealing with products from someone who was obviously hoping to get good press.
2. If you review product that you got for free, make sure your readers know about it. I've discussed the FTC Endorsement Guides in some prior posts; look there if you'd like more information about when you do and don't need to disclose.
3. If you keep the product and give it a negative review, make sure you've been 100% accurate in everything you say. Truth is a complete defense to libel in America, and you'll want to make sure you've done everything to take advantage of that. (It's not a complete defense everywhere by the way; more on that in a future post.)

But can endorsing a product get you in trouble when you're not even talking about a product? It did for one NFL player. I'll talk about that tomorrow.

LINKS:
Siegal's Complaint:
http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-12-28-Siegal%20Complaint.pdf

If you review content on the Internet, don't forget one thing

Do you take review comments from blogs or from Amazon and use them to promote your work? If so, do you feel you have a good sense for when people are trying to be sarcastic or ironic? And if you think reviews are sarcastic or ironic, do you avoid using them in your promotional materials?

Unless you've answered all of these with yes, you need to know about one aspect of the FTC Endorsement Guides that might come as a surprise.

Below, I've embedded and linked to the trailer for a film called Birdemic. Watch the whole thing if you like (and if you can) but in any event fast forward to 2:08 where you start to see review comments like:

What everyone misunderstands about the FTC endorsement guides

If you're on Twitter, or run a blog, or do any self-promotion whatsoever, you may have become aware of the FTC Endorsement Guides. If not, you should.

There are people out there suggesting that you should end every blog post, every email, every everything by disclosing whether you have received anything free or below cost that you've mentioned in your post. That's certainly one way to be safe. Far be it from a lawyer to recommend against over-disclosing. But I think there's some confusion around what exactly is and isn't required, and I think there's a lot of overkill going on.

The actual text of the relevant section of the Guides (255.5) says: