Big Think of the Day: “Stealth Marketing and Editorial Integrity”

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Nogueira dies: An astonishing “kill your TV” moment from the Brazilian soap opera Vidas Opostas.

… the committees of at least one presidential candidate and one Senate candidate paid bloggers for unattributed campaign promotions. See Charles Babington & Brian Faler, “A Committee Post and a Pledge Drive,” WASH. POST, Dec. 18, 2004, at A16 (noting payments by John Thune’s Senate campaign to two bloggers who attacked his opponents online); William M. Bulkely & James Bandler, “Dean Campaign Made Payments to Two Bloggers,” WALL ST. J., Jan. 14, 2005, at B2 (detailing payments made by Howard Dean’s presidential campaign to two bloggers in order to receive positive campaign promotions online). Political committees must disclose these disbursements in reports filed with the Federal Election Commission. 2 U.S.C. § 434 (2000 & Supp. IV 2004) —Ellen P. Goodman.

MAN IN LINE: I happen to teach a class at Columbia called “TV Media and Culture”! So I think that my insights into Mr. McLuhan-well, have a great deal of validity.

ALVY: Well, that’s funny, because I happen to have Mr. McLuhan right here. So … so, here, just let me-I mean, all right. Come over here … a second.

MCLUHAN (To the man in line): I hear-I heard what you were saying. You-you know nothing of my work. … How you ever got to teach a course in anything is totally amazing. –Woody Allen, Annie Hall

Stealth Marketing and Editorial Integrity, Ellen P. Goodman. Texas Law Review. Austin: Nov 2006. Vol. 85, Iss. 1; pg. 83, 70 pgs. A kneejerk review, at the speed of typing.

Ought there be a law against blogola — see Terminology Watch: “Blogola” — and Richard “Rashomon” Edelman-style astroturf marketing campaigns?

[It’s an issue that even some notable practitioners of the black art — such as Global Voices Online — seems to have started paying lip service to, I note. –July 2008]

Against “identity management strategies” such as the one used by Intel in producing advertising aired by a news channel as its own work?

In which an interview subject is identified as an anthropologist, but not as an Intel-employed anthropologist — implying that hers were the observations of an independent expert on the subject and not of a paid shill for the house?

Prof. Goodman thinks so. Why? Basically, because it is a form of lying to the public over the gazillion-jigawatt megaphone.

But what is so wrong with lying to the public over the gazillion-jigawatt megaphone be against the law, you ask?

Amazingly, there really are people who remain unclear on this point.

Consider the curious case of Radio RTLM in Rwanda:

Before the genocide began, Rwandans chose to listen to RTLM in a relatively open and competitive media environment. After the genocide began, however, nearly all other media were silenced, which severely curtailed domestic transparency. Some Rwandans with short-wave radios could hear contesting descriptions of events, but RTLM challenged outside sources of information, telling Rwandans to ignore the “biased and ill-informed” reports. –Kristin M. Lord, The Perils and Promise of Global Transparency.

Reading along, then, in Goodman.

… the practices of payola, product placement, and sponsored journalism are proliferating and spreading into newer media forms like blogs and video games. A federal sponsorship disclosure law has proscribed these practices in broadcasting for nearly a century. Despite high-profile recent controversies about the practices, the legal literature is devoid of any systematic analysis of the problem that stealth marketing presents or the values that sponsorship disclosure might serve, whether in broadcasting or other media. This Article fills that void by providing a normative theory of sponsorship disclosure law informed by the First Amendment, bribery law, and information theory more generally.

Lying over the gazillion-jigawatt megaphone of the old media has long been considered out of bounds, as a distortion of the proverbial free and open marketplace of ideas, one that undermines its efficiency.

(The history of which makes for an interesting read as well — especially the sorts of cases that made people start saying, “There oughta be a law against his nonsense!”)

American mass media law has long been hostile to stealth marketing, at least when broadcast by radio and television. It is illegal, for example, for a record company to make secret payments to radio stations to play music—the practice of payola—or for an advertiser or organization to pay broadcasters to feature products or story lines without identifying the sponsor. Sponsorship disclosure law requires broadcasters to identify those who pay for program material and imposes criminal sanctions on both broadcast employees and sponsors for concealing sponsorship.

Was any criminal sanction ever brought against Fox News for running an Intel-produced advertorial progam as its own work?

A Florida court found that Fox News could fire reporters for cause for refusing to lie to the public when ordered to do so, meanwhile.

The question is, Does the Internet change everything?

Does lying on the Internet exist in a separate, alien ontological dimension where war is peace and love is hate?

Although this law is well established, no one has yet offered a satisfying account of why it exists or how it should operate in a digital world. At the same time, recent controversies over stealth marketing practices reveal continued popular and political support for the law and for more vigorous enforcement. These controversies have involved local television stations’ covert use of government propaganda in their news and government payments to media pundits to endorse positions on social issues like education and marriage. We have seen a resurgence in enforcement actions against old-fashioned radio payola, like the state of New York’s recent settlement with Sony BMG and the Warner Music Group for secretly paying radio stations to spin records. Complaints about the integration of product promotions into entertainment programming now sit before federal regulators. And in Hollywood, these marketing practices have become a source of labor unrest as screenwriters are asked to write promotional copy into scripts.

Even industries that are regulated by agencies that their own lobbyists control have been feeling public pressure to shut down gabbling noise-machines:

Concerns over stealth marketing are resonant enough to move Congress to action and prompt reluctant regulators at the Federal Communications Commission to threaten more energetic enforcement of the sponsorship disclosure rules. Against this background, the legal literature on stealth marketing is remarkably thin. Among all stealth marketing techniques, payola is the only one to have received significant analysis, most notably in a little-cited article by Ronald Coase defending the practice.

Ronald Coase defends payola?!

Sponsorship disclosure seems to be one of those obligations imposed on broadcasters simply because it is in the public interest. But what interest?

Good question. What is the public interest in not being bombarded with messages whose source cannot be considered by the message recipient.

It is not obvious why the public is harmed when Sony Records secretly sponsors airplay of a Celine Dion track that audiences enjoy, or when an advertiser or propagandist injects into programming a storyline that stands or falls on its merits.

On the other hand:

Nor is it clear why, if stealth marketing harms radio and television broadcast audiences, it does not similarly harm cable, satellite, podcast, cell phone, or Internet audiences.

Because, as the buzz-machinists constantly repeat, the medium is the message!

Roy H. Williams, the Wizard of Ads®, disagrees:

  1. The media is not the message.
  2. The message is the message.
  3. And the message is what matters most.
  4. To deliver a pointless message powerfully is the definition of hype.
  5. To deliver a powerful message pointlessly is the result of weak creative.

But what is the harm?

So what if Globo TV talking head Paulo Francis refers to a segment of Brazilian society as “subhuman”?

So what if Radio RTLM announces — falsely — that Tutsis have massacred 300,000 Hutus and that the time has come to exterminate the Tutsis before they exterminate you?

The short form of the answer:

Stealth marketing harms, I argue, by degrading public discourse and undermining the public’s trust in mediated communication. Doubt that an editor has an authentic voice leads to an overgeneralization of distrust as audiences come to believe that mediated speech is inauthentic or untrue even when it is not. The law of bribery as well as public discourse theory helps to show how such distrust corrupts the kind of communicative public sphere hat a democracy needs.

Two objections to be overcome: free market fundamentalism and the First Amendment.

Sponsorship disclosure requirements mitigate this harm by correcting failures of the market to inform audiences of marketing activities. The role of sponsorship disclosure law in enhancing discourse and generating valuable consumer information neutralizes the two strongest lines of attack against it: First Amendment and free market absolutism. In fact, disclosure requirements advance the First Amendment value of robust debate without burdening speech and further the market goal of informed consumers without imposing undue costs.

But can’t the market solve the problem?

As for market incentives, media entities may indeed choose to compete on their level of disclosure or abstinence from stealth marketing. But in an unregulated market, there is a significant risk that media entities will participate in a race to the bottom of undisclosed promotions especially since incentives to engage in stealth marketing are strong and growing.

The worst-case scenario being what you have here in Brazil: The great finger-wagging evangelists of the Gospel According to Ayn Rand are armed media monopolists who got their armed media monopolies in the first place by sucking up to Gnostic generalissimos, telling the lies the Gnostic generalissimos wanted told — and which do not scruple at trying to enlist the Gnostic generalissimos to help them keep their monopoly, either.

Except that the days of Gnostic generalissimos seem to have passed, by and large. One hopes.

More soon, but thought-provoking, is it not?

I have been wondering, for example, as I read about “increased used of PR proxies” by the USDoD, and the increased use of “public diplomacy outsourcing” by the U.S. Dept. of State, just who might be getting paid to do that sort of thing?

And what sorts of things they have been doing for that money?

And whether they are publicly accountable for it?

So I start nosing around FedSpending.org to see what I can dig up on the subject.

Preliminary conclusion: Those budgets seem to have gone black for some reason. Or at least I cannot find the line items in the place where you would expect to find them. And for the life of me, it looks like State has not reported on expenditures in certain areas since, like, 2004.

Not sure of that. Just a first impression. This will require some more digging.

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