Ethics and disclosure rules for wine bloggers #WBC16

Like other journalists, many wine bloggers rely on product samples or invitations to events to get what they need for their writing. The ways bloggers disclose these relationships are as varied as the wine blogs on which they appear. Here is a quick guide to the rules that bloggers should follow, especially to stay within bounds of the Federal Trade Commission (FTC) regulations.

In guidelines first published in 2013 and reiterated in 2016, the FTC makes clear that there is no ambiguity: FTC rules apply to bloggers. It doesn’t matter whether anyone reads your blog. It doesn’t matter whether you get paid to blog. It doesn’t matter if it is merely a hobby.

If you are a blogger, you must disclose every time you write about a product or service and you receive compensation or something of value from the provider of that product or service. This includes free product samples, meals, or any other item of value that is not generally available to all consumers. 

If a winery pours free tastes to all visitors, you do not have to disclose that you had free tastes. However, if the winery sent you a free bottle because you are a blogger, you must disclose.

Where many people get mixed up is social media. The FTC does not distinguish between social media or a printed magazine or any other media. This even includes within a 140-character tweet. But it’s not that difficult. The FTC website has a thorough guide that shows how to do this with as few as three characters. Google also has a simple guide for online reviews.

In its most recent update, the FTC has reiterated earlier guidance that disclosures cannot just be a separate page on your website or buried at the bottom of the page. “It does not convey the importance, nature, and relevance of the information to which it leads,” says the federal agency. But simply putting “AD” in a tweet may be enough.

“You have to disclose that you were paid or got a free sample before you mention the product,” says Jana Seitzer aka Merlot Mommy. The disclosure has to be “clear and conspicuous,” according to the FTC guidance on native advertising, which applies to many kinds of blog posts, including reviews.

Here are five things wine bloggers should do:

  1. Disclose that a review is based on a free sample from a winery at or near the top of your review. Some bloggers put a short note above each post. Others include this detail within the text. Either is ok, provided that a reader sees it before the product mention.
  2. If you link to a web page where consumers can buy a product you wrote about based on a free sample, the disclosure must appear before the link. This applies even if you do not get a share of the sale. However, no disclosure is needed if you are mentioning a product or service just as a convenience to your readers and you have no relationship with the seller of that product or service.
  3. On Twitter, Instagram, or other platforms that limit characters, tags like “Paid Ad” or “Ad” are sufficient disclosures. “Affiliate” or “affiliate link” is not, because not every consumer will understand what that means. Sending a separate tweet with a disclosure does not satisfy the requirements.
  4. The disclosure rules apply to all platforms, including audio and video.
  5. Any links related to paid or otherwise compensated content must use the “nofollow” tag. This should be used anytime a link is included because you received a sample or compensation. https://support.google.com/webmasters/answer/96569?hl=enthe “nofollow” tag.

Here is how I handled a wine tasting for which I received a free (expensive) bottle of (very good) wine and a set of wine glasses:

The “Ad” tag before the hashtag that the sponsor asked me to use followed the FTC guidelines. However, the recent update suggests that the tag now should precede the product mention. If I were to do this now, the tweet would look more like:

Tasting notes: High tannings, med acidity, blackberry & leather in (#Ad) @minerwines 2011 The Oracle. This #wine needs time. #TheOracleHasSpoken

I also did a tweet at the beginning of the series that disclosed exactly what the winery provided. Note that the disclosure tweet does not satisfy the FTC guidelines. The “ad” tag or another explicit disclosure within each tweet that mentions the product is mandatory.

For more about “nofollow” tags, refer to Google’s Search Console or WordPress. There are many blog plugins to simplify this, but it’s really just a matter of adding rel=”nofollow” to your hyperlinks, like this:

<a href=”http://wineandfoodworld.com/” rel=”nofollow”>Doug Levy’s blog</a>

(Bonus: Google’s Louis Gray and artist Jeannine Schafer created a handy set of disclosure icons.)

Disclaimer: Although I am an attorney licensed to practice law in Maryland, this blog post is for information purposes only and not intended as legal advice. Consult your own attorney for advice specific to you. 

Photos: 11 great tools to find and use images without copyright infringement

Every blogger knows that images are essential both to better storytelling and attracting an audience, but not every blogger creates their own photographs. This article is intended to help you find and use good images without infringing on another person’s creative property (i.e., stealing.)

Photographers are no different from bloggers, authors, software engineers or anyone else whose living depends on the intellectual property they create. Many photographers are highly compensated for their work and won’t hesitate to take action if they discover that one of their images was purloined, as they should. Receiving a demand letter (or an invoice!) from an aggrieved copyright owner is something to avoid.

Let’s start with a couple of basic rules:

  1. Giving credit does not by itself make using someone’s images ok or legal.
  2. Many photographers make obtaining permission easy.
  3. There are lots of ways to get images that are freely available.

For a good discussion about using other people’s content generally, check out this blog post by attorney Ruth Carter. For images, Carter says she relies on images that are protected under a Creative Commons license to modify and commercialize the original.

All Rights Reserved

If you find an image that you like, check the copyright notice. This is sometimes in the caption, although occasionally you have to hunt around on a website for it. If it says “All rights reserved,” then you must obtain permission before using it.

The phrase “all rights reserved” is not mandatory. Unless content owners expressly give permission, you should presume that they are keeping all use rights. That means you must contact the owner and negotiate permission if you want to use their material. Sometimes a quick email is all it takes. With companies, there may be rights management departments, forms to fill out, and licensing fees based on the intended use. For most bloggers, this is more trouble than it is worth.

Creative Commons

Creative Commons is a framework for copyright protection that includes clear information on what permissions are available. Many people are happy to freely share their content for certain kinds of use, so there are a ton of images with a Creative Commons license. Just make sure that you read carefully. There are six different categories. Only three of those categories allow commercial use. All six require attribution. The differences primarily have to do with commerical or non-commercial use and whether you can alter the content or only use it exactly as the originator published it. More information about each of the Creative Commons licenses is available on the Creative Commons website.

Image Search Tools

Here are some sources for images that can be used by bloggers and others without going through a lot of hoops for a license:

  1. Creative Commons has a portalto the search features on about a dozen sites that have images or other content available for reuse. You can select whether you want to search for content that can be used commercially or modified.

 

Public Domain, https://commons.wikimedia.org/w/index.php?curid=100769

2. Wikimedia Commons is a repository for a vast array of images from individuals, organizations, libraries, government and other sources that are generally available for republishing. Many of the images are in the public domain, which means you can use them as you like, no restrictions. The typewriter image here was contributed by an individual who chose not to retain copyright.

Consistent with the sharing culture of Wikimedia (and Wikipedia,) the site prompts you to include a credit line and makes it easy. Just click on the bar that says “You can attribute the author” to get a ready-to-use plain text or HTML credit line.

3. Flickr has long been a favorite site for photo sharing by serious amateurs and some professionals, in part because of its built-in rights management. If you search for an image, the copyright status is at the top of the download screen. Flickr also allows you to search by license type.

The options include the variations of Creative Commons licenses, no restrictions, and “U.S. Government works.” (See below for more on this last category.)

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4. Pixabay is a search site for images that are in the public domain. It also has an especially good explanation of what that means, and why “public domain” does not necessarily mean unfettered use.

5. Wylio is a service that streamlines the process to find and use images from Flickr. Basic search is free, but for $3 a month, users can search and find images via Wylio.com and in one step, obtain cut-and-paste embed code for WordPress or other blogs. For non-Wordpress blogs, the image download button has the reminder: “Don’t forget to add the credits somewhere,” which is mandatory under Creative Commons licenses. It also provides a credit line for immediate use.

6. Similar to Flickr, Google Image Search has an option to search images by license type. However, because Google search pulls from all websites, you must verify the copyright or permissions on the image’s original page to be sure.

Two healthy eaglets residing in the nest in a tree in the U.S. National Arboretum. Photo (C) American Eagle Foundation / www.eagles.org (Screenshot captured online by Carol Ceasar)

7. PRNewswire is another source for images that typically are restricted but permission is freely granted to bloggers or other journalists using the pictures as part of a relevant story. The cute baby eagle picture is one example.

U.S. Government Works

The last category on the Flickr advanced license search is one gateway to a vast resource that many bloggers overlook: By definition, nearly all images produced by the federal government are available for public use without restriction. This means that spectacular science images from NASA or the National Institutes of Health are among the assets that are free for the taking. (The rule is not so simple for state or other government units, but these can be great sources, too.)

In addition to images that you can find on Flickr or Google, here are direct links to a few federal sources for images:

8. Health and science: NIH Image Bank and the Public Health Image Library (CDC)

9. Space, physics, astronomy, geology: NASA

10. Military and more: Department of Defense

11. Outdoors: Bureau of Land Management

Other tools?

If you have other ways to find images for your blog, please share in the comments.

Disclaimer: This article is not intended as legal advice. Consult your own attorney about any specific questions. I am licensed to practice in Maryland.

This post was originally published at Medium.com.