THE SXSW ISSUE
The week of March 8, 2015

Will the FTC ever drop the hammer on paid Wikipedia edits?

By Simon Owens

David King has no doubt that if the Federal Trade Commission were to investigate Wikipedia for undisclosed, paid edits, it would discover a panoply of abusive infractions. Any legal actions the agency took against the perpetrators, King argues, would send a ripple effect through the marketing and public relations industries, helping to curb any future abuse.

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David King

King, a North Carolina–based Wikipedia consultant who advises clients on how to approach the online encyclopedia (more on that later), simply points to a 2012 court ruling in Germany that had just that sort of effect. The ruling, issued by the Higher Regional Court of Munich, found that the defendant, who worked for a dietary supplements company, had made edits that promoted his company without providing proper disclosure. As reported on Wikipedia Signpost, “the court first found that editing Wikipedia is ‘commercial practice’ under the German Unfair Competition Act,” and though the defendant had made a disclosure on the article’s “talk” page (where editors can chat and discuss their edits), the court concluded that the “average consumer who uses Wikipedia does not read the discussion pages.”

“Ever since that court ruling, whenever I talk to a marketer person in Germany, they have just a vastly superior knowledge of ethics on Wikipedia and how to participate,” King told me in a phone interview. “They’ve all heard of the court ruling, and they’re all aware that they need to be cautious as a result and that they’re supposed to follow certain rules. They have a different mindset entirely.”

The FTC, a U.S. federal agency established during Woodrow Wilson’s administration and charged with protecting consumers against abusive business practices, has a long history of taking action against misleading advertisements, including any sort of content that doesn’t properly disclose that it has paid interests behind it. In the 1980s, for instance, we saw the emergence of half-hour infomercials that bore little resemblance to typical television advertisements. “Infomercials are deceptive by design,” a 1991 law journal article argued. “Probably the most objectionable aspect of the infomercial format is the similarity of the commercial to actual objective programming.”

Barry Cutler, who was director of the FTC’s Bureau of Consumer Protection from 1990 to 1993, told me that the first FTC case concerning an infomercial was for a sunglasses company that filmed man-on-the-street try-ons and featured people in white lab coats offering evaluations of the product. Because of this case and others like it, any informercial you watch today will contain the word “advertisement” placed somewhere prominently on the screen.

“Do you know it’s an ad? Would a reasonable consumer understand that someone has been paid or rewarded to get this message to you? When you say it that way it’s immediately clear that Wikipedia is not different.”

The FTC has not been shy or ambiguous about whether these standards apply to Internet content. In 2009, it updated its guidelines on testimonials and endorsements to include, among other things, rules for bloggers who receive free products from a company and then go on to write a review.

“The blogger should clearly and conspicuously disclose that he received the [product] free of charge. The manufacturer should advise him at the time it provides the [product] that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance.”

In 2013, the FCC issued further guidance for how these rules applied to social media, including platforms like Twitter that have restrictive character limits. It also hasn’t hesitated to enforce these rules, as it did when it investigated and sent a warning letter to the fashion label Cole Haan, which had held a contest on its Pinterest page offering up $1,000 and tasking its followers with uploading photos of the company’s shoes along with an associated hashtag. The $1,000 was considered a financial incentive, and Cole Haan did not instruct its Pinterest followers to disclose that they were uploading the photos to participate in a contest.

But while the FTC has taken legal action on everything from paid app store reviews to undisclosed blog endorsements, it has yet to make any discernible enforcement of its rules against paid Wikipedia editors—despite ample evidence of such shady behavior occurring regularly. This abuse has been known to the Wikimedia Foundation, the nonprofit organization that hosts Wikipedia, and top editors since at least 2006, when cofounder Jimmy Wales personally stepped in and banned the account of Gregory Kohs. Kohs had founded a company called MyWikiBiz and advertised that he’d edit clients’ articles in exchange for money.

In 2012, Wales, in what is referred to by Wikipedians as his “bright line,” further clarified his thoughts on paid Wikipedia editing: “My position is relatively simple. I am opposed to people who are paid advocates being allowed to edit in article space at all, and extremely supportive of paid advocates being given other helpful paths to assist in our work usefully and ethically.”

“It’s unclear at this point what the FTC would even consider as proper disclosure.”

These issues faced increased scrutiny in October of last year, when I broke the story of the largest sockpuppet network in Wikipedia’s history. I reported that Wikipedia admins had, over the course of a yearlong investigation, located and banned hundreds of accounts that were all reportedly operated by just a handful of individuals. After interviewing several people involved, I concluded that many of the accounts were created by Wiki-PR, a company that, in its marketing materials, openly bragged about editing Wikipedia articles for paying clients and even claimed to have Wikipedia admins—the upper echelon of Wikipedians who have special administrative powers—on its payroll. In addition to using multiple sockpuppet accounts to generate fake consensus on the encyclopedia, Wiki-PR also wrote and placed articles about its clients on outside websites in order to produce citations and prove that its clients were “notable” enough to warrant their own Wikipedia articles.

Later that month, after the publication of my article and a follow-up piece in Vice, the Wikimedia Foundation’s then-Executive Director Sue Gardner published a response, saying that the foundation was aware of the issue and “currently assessing all the options at our disposal.” It subsequently banned all Wiki-PR employees and sent a formal cease-and-desist letter. However, Wiki-PR is still reportedly offering some kind of Wikipedia consulting to companies (it’s unclear whether it’s editing articles directly) and is rumored to have even changed the company’s name in order to steer clear of its now-tarnished brand. I requested an interview with the Wikimedia Foundation to discuss this and other related issues, but a spokesman simply wrote back, “we won’t have further commentary to add right now.”

But did Wiki-PR actually violate the FTC’s guidelines? Put another way, does the agency have the authority to step in and take action against companies that make edits, without proper disclosure, on their own articles (or those of their competitors)? I requested an interview with an FTC spokesman in order to answer this question and was told: “We don’t really have anything to say about this specific situation. However, as you already know, in any situation related to endorsements in commercial speech, material connections should be disclosed.”

Rebecca Tushnet

Rebecca Tushnet

Rebecca Tushnet, a professor at Georgetown Law who teaches intellectual property and advertising law, seemed confident that this kind of Wikipedia abuse fell under the purview of the FTC. “The issues are the same as they ever were,” she explained. “Do you know it’s an ad? Would a reasonable consumer understand that someone has been paid or rewarded to get this message to you? When you say it that way it’s immediately clear that Wikipedia is not different.”

Tushnet predicted that a hypothetical FTC case wouldn’t be brought against Wikipedia or the Wikimedia Foundation, but rather would be directed toward the entities that paid for the edits to be made. I asked her what tools the agency had at its disposal that it could use against an offending individual. “It depends,” she replied. “There could be injunctive relief”—meaning a court order demanding that a company immediately cease a certain practice—“or there could be civil redress”—i.e., monetary compensation—“if there were consumer harm.” The FTC has its own administrative judges that it can use to prosecute unfair business practices, or alternatively it can bring the case to federal court and sue for the violation of the FTC.

“In order to maintain strong relationships on Wikipedia, we need to share the page and not micromanage and hover over it.”

Other experts I interviewed, while acknowledging that these kinds of edits technically violated the rules, doubted that the FTC would ever bring a case forward. Barry Cutler, the former director of the FTC’s Bureau of Consumer Protection, said that FTC resources are scarce, meaning it needs to be judicious in choosing which cases it prosecutes. “Most people do not get seriously ripped off or have their lives changed by [Wikipedia sockpuppets],” he said in an email. “ The FTC has spent the past few years helping people whose lives have been hurt by scams tied to real estate or other investments that pop up in a bad economy. Unless Congress appropriated much more money and designated a much bigger head count, sock puppetry does not appear to change people’s lives.”

Cutler argued that there is a certain caveat emptor inherent in Wikipedia that’s widely shared by most consumers who visit it. In other words, the consumer knows that anyone can edit the website and therefore he approaches it with a certain level of skepticism. “Bloggers almost always write good things about a product if they are getting paid for it,” he elaborated. “Editing on Wikipedia is much more subtle. Someone can delete unfavorable stuff. Someone can edit language to make it a little softer, e.g., ‘sharp practice’ instead of ‘rip-off.’ There could be individual cases of editing that belong in the scope of the FTC’s Guides that merit enforcement, but not because it is Wikipedia and not because it is more likely to fool the average person. Much of social media involves an element of the Wild West and, at some point, the FTC should not be spending a lot of its limited budget protecting people who think that a bulletin board, whether it impersonates an encyclopedia or not, is going to be a most reliable source for information.”

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It’s unclear at this point what the FTC would even consider as proper disclosure. It’s made apparent on many occasions that it doesn’t find mere disclosure to be sufficient if that disclosure isn’t seen or understood by the average consumer (e.g., if the disclosure is published in tiny print that nobody is likely to read). As we saw with the case in Germany, disclosure on the “talk” page of a Wikipedia article is insufficient because most people don’t click on that tab. In its 2013 social media guidelines, the FTC made clear that simply offering a blanket disclosure in a single tweet is not acceptable because it would quickly get buried in the feed; therefore every tweet with a financial conflict of interest should include a disclosure, like a #sponsored hashtag.

Not even the Wikipedia community itself has provided much guidance on these issues. Despite Wales’ wish that paid advocates be given “helpful paths to assist in our work usefully and ethically,” the community is sclerotic about passing new official policies and hasn’t done so in years. Though there’s general consensus that subjects of articles should have some kind of input, there’s no consensus on what form that input should take. This has forced consultants and PR professionals who want to adhere to some kind of ethical standard to form their own ad hoc rules.

For Wikipedia consultants like David King, this means using the talk page of an article to appeal to disinterested editors who don’t have a conflict of interest. King or another consultant like him is hired because a client thinks the Wikipedia article about it is weak, unfair, or perhaps it doesn’t have an article at all but deserves one. The consultant can draft changes that conform to Wikipedia’s quest for neutrality and then take those changes to an unpaid, volunteer editor and ask him or her to make the edits. Done this way, no one who has an actual financial conflict of interest performs any of the article editing.

“It’s a very large, amorphous community, with more rules than any one editor possibly has the time to learn.”

“One of the statements we have our clients sign is that volunteers are going to make edits,” King said. “And sometimes the edits aren’t going to be the best possible edits, but in order to maintain strong relationships on Wikipedia, we need to share the page and not micromanage and hover over it, and respect that every editor has a certain degree of leeway to make decent and not terrible but not perfect edits, and we have to allow for that.”

Bill Beutler

Bill Beutler

There have even been attempts to create some kind of industry standard for paid advocacy. Bill Beutler, another Wikipedia consultant, set out to accomplish this earlier this year when he gathered representatives from some of the world’s top PR firms in the conference room of a D.C. hotel in order to hammer out a joint statement promising to adhere to certain ethical practices. (Disclosure: Beutler is a friend of mine, and I’ve worked with him in several capacities, though never on paid Wikipedia consulting.) “It’s long been a source of frustration for me that the only time that Wikipedia and PR are mentioned in the same news articles is because someone has been caught doing the wrong thing,” Beutler told me.

In addition to the PR representatives, there were several longtime Wikipedians present, and over the course of their meeting, they began to form some general themes and ideas about how the industry should behave that would keep it in compliance with Wikipedia’s terms of use. In the following weeks, Beutler took these bullet points and crafted them into a single statement and then emailed it out to the larger group. After about six rounds of edits, nearly all the parties were satisfied enough to sign on. In June, the statement went live on Wikipedia. Though it doesn’t dive into any of the actual mechanisms of disclosure, it promises to “act in accordance with Wikipedia’s policies and guidelines, particularly those related to ‘conflict of interest’” and to “abide by the Wikimedia Foundation’s Terms of Use.” Not exactly earth-shattering, but with over 35 firms now signed on, it’s at least a tacit acknowledgment from the industry that there’s a problem that needs to be addressed.

But can that problem ever be fully addressed? Whenever I asked Wikipedians why they think the FTC has so far steered clear of the online encyclopedia, they commonly point out that it takes quite a bit of esoteric knowledge just to create a new article or even upload an image. “It’s a very large, amorphous community, with more rules than any one editor possibly has the time to learn,” said Beutler. “Everyone is a volunteer, so participation is inconsistent and rule enforcement is inconsistent. Because editors tend to be volunteers, there tends to be resistance to the idea that a Wikipedia editor can be compelled to do any one thing.”

With no actual cases brought by the FTC (or any state attorney generals for that matter), all paid advocates can do for now is guess at a solution and at least attempt to adhere to some form of disclosure. That is, if they have at least some ethical quandaries about conflicts of interest. For everyone else, with the lack of legal repercussions and a system that allows for anonymous changes, that “edit” button sitting on every Wikipedia article can prove to be all too alluring.

Simon Owens is a technology and media journalist living in Washington, D.C. This article was originally published on his personal site. Follow him on Twitter, Facebook, or Google+. Email him at simonowens@gmail.com.

Photo via Manuel Schmalstieg/Flickr (CC BY 2.0) | Remix by Jason Reed