Could the FTC mandate that endorsees include a disclosure requirement in their agreements with bloggers / endorsers? That seems a different route to the same end. My suspicion, though, is that formalized contracts are relatively rare, and that often this is simply a matter of marketing giveaways and such.

Thanks!

If I understand properly your argument about Section 230 immunity for the Transformers-loving blogger, I disagree.

I don’t see why the FTC could not punish the blogger for a misleading omission in her own speech. Section 230 comes into the picture only to immunize content provided by a third party. If, instead, a commenter on her blog were secretly a Buzz Agent getting free tickets in exchange for talking up the movie on blogs, then I agree the blogger who hosted the misleading endorsement would be shielded by section 230. But not if the content came from the blogger.

Likewise, if you write a blog post that defames someone, you are responsible. (Just the same as a newspaper, or indeed ordinary oral gossip). It doesn’t matter if you also got information from some other source that contributed to your defamation. If, however, the defamation was solely user-generated content, the host is not responsible.

I do agree that it would be hard to see how the FTC can hold the studio responsible if it gives out free tickets and the recipients then fail to make FTC-required disclosures when they blog about the movie. But that strikes me as a simple problem of agency and control, not a section 230 issue. Perhaps the FTC could require that the studio prominently inform recipients of their own disclosure obligations, however.