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November 30, 2009

Disclose This: I Can't Disclose Everything Everywhere!

Though hubbub around the FTC's plans to require bloggers to disclose relationships with companies, services and products has lessened over the last few weeks, the December 1st date for enactment is rapidly approaching. As promised before, and many other times, I will make any relationships I have that are beyond "typical" clear to you as best as I am able. But, as you can expect, as communication vehicles evolve, even today's best-attempt laws aren't ready for how I am operating. With so much of my downstream activity being automated due to activity elsewhere around the Web, the potential for disclosure sometimes doesn't even come up.

Long-time site visitors know that for the first 3 years of my writing on the blog, I was extremely careful not to talk about my company, its employees, partners, customers or even talk about the industry. In 2008 and this year, I started to have some unpaid advisory roles that included a minor equity share, and told you about that, disclosing where it made sense. And now, with my new role at Paladin Advisors Group (@paladinag), I am growing the client roster, attracting some enterprise companies, and startups who want to work with me more closely.

So that's a good thing, right? I agree. I am excited about the new possibilities as I sign up new clients and advisory roles, because my entanglement in the Web is changing - from an interested observer and consumer to one that can play more of an activist role, shaping the tools we are using now or will use soon. Yet, as I add such entanglements, I am thinking about where I can possibly disclose - not so I am covered by the FTC, but so I am covered with you, because your trust is more important than whatever the FTC dreams up.

(And to be honest, I've given it a lot of thought, and it's probably true that in many cases, advisors to a company, or its VCs, should be trusted a great deal more than a typical consumer, as they actually know the product and company better than just about anyone)

Here's where I perceive gaps from the FTC to my workflow:

1) Archived Posts and Discussions of Current Clients

Very often, my new clients are ones I have written about before. My previously writing on them was no doubt due to my interest, and they came to know me either prior to the story, or because of it. Now that I have a working relationship with a client, for example, with my6sense, should I retroactively go tag all previous posts that mentioned them with a new Disclosure text?

Also - should it be perceived that maybe I covered them in a positive light before, because I was angling for an advisory role? Even if there was no professional role before, should one assume that was the case, or is this coincidence?

2) Liking of 3rd Party Content On Current Clients

I won't even waste my time reading every word of the FTC's script, but other folks, including SiliconAngle's Mark Hopkins have done the dirty work. The obvious places to disclose are, of course, in blog posts, and in Tweets. But what about other people's content, where I can add visibility to their own comments, even if I was not the original author?

For example, should I not "Like" comments by the client or other shares of the client's work that others have made on Facebook and FriendFeed? Is it assumed that I would only "like" a post about a feature release because of the relationship? What about adding their items to Delicious or other networks?

3) Automation Can Prevent Disclosure

If I see a blog post by a client and share it in Google Reader, do I also have to add a note when I share that they are a client? What if I retweet their official Twitter account? Notwithstanding that Twitter won't let you make any additional comments on their new retweet functionality, one almost runs out of characters.

If you also remember that I have a fairly robust social media workflow, much of the way I get data around the Web is by letting other networks do the heavy lifting. Bookmarks I make on Delicious and items I share on Google Reader automatically get tweeted - and I never get a chance to disclose - if there is any relationship. This is essentially what could be construed as a crime of omission, one that is not egregious, but could still be looked at sideways, if one feels that I did not make best efforts to make a relationship clear.

In October, I said the disclosure rules would have little effect, largely because I believe people who skirt the rules today will continue to do so, and while there will be some showcase examples of enforcement, they will be a small percentage of infractions indeed. I still don't think this will be dramatic. But it always seems like the people who try to change the rules are changing them for the way the Web was, not the way the Web is. And if I can easily find loopholes or places to work around the rules, the people who are the real bad guys will walk all over this thing.