In July this year Warner Brothers were wrapped on the knuckles by the American advertising watchdog, the Federal Trade Commission (the FTC). The FTC found that Warner Brothers had failed to adequately disclose to YouTube users that it paid influencers on the social media site "hundreds to tens of thousands of dollars" in return for those influencers to create sponsored videos that promote the game only in a positive way. The game in question was Warner Brother’s 2014 multi-platform release “Middle-earth: Shadow of Mordor”.

Whilst the game was relatively well acclaimed across mainstream news outlets, it received a lot of unwanted attention for its ‘shady’ advertising practices. In the settlement handed down by the FTC, although the games publisher were not required to pay fines, it was asked to “provide each Influencer with a statement of his or her responsibility" to disclose endorsements clearly when engaged by Warner Brothers in the future.

A UK view – does the same apply here?

In the UK sales promotions and advertising are regulated by two bodies, the Advertising Standards Authority (ASA) and the Committee of Advertising Practice (CAP). The ASA is the independent regulator for advertising and CAP is responsible for writing and maintaining the UK Advertising Codes and providing advice on those rules.

Whilst not related to the gaming industry, the ASA has previously ruled against advertisers running promotional videos masked as influencer opinion, most notably in 2014 when it banned a series of videos called “Oreo Lick Race” which were actually adverts for Oreos biscuits.

Whilst there were statements from popular UK YouTubers including Phil Lester and Dan Howell (who have over 3.7 million subscribers on their YouTube channel) such as “Thanks to Oreo for making this video possible” and links to the Oreo promotion in the description, the ASA held that “…because the statements did not fully establish the commercial intent of the videos, and because no disclosures were made before consumer engagement with the material, the ads were not obviously identifiable as marketing communications.”

Surely this was also contrary to YouTube’s terms of service?

Whilst YouTube permits product placement in its videos, it always caveats this with statements such as “[you] will also have to comply with any applicable laws and regulations”. So in short, yes it was contrary to their terms of service.

However, there are also specific rules about placing product placement videos onto YouTube’s platform. Product placement can be notified to YouTube by “checking the appropriate box in your video's Advanced Settings tab.”This allows YouTube to ensure that they do not fall foul of their own commercial arrangements (for example YouTube playing adverts for competitor products on your video, which may breach their contracts/terms with their other advertisers). Failing to do this could lead to your video being removed without notice, which may not be ideal if you have already received a large amount of engagement from followers and subscribers to your channel.

If you are looking to add your promotional video onto another video platform (or a social media platform that allows video such as Facebook), you should also check those specific terms of use in respect of promotional videos as, although they are likely to be similar, will vary from site to site.

Respecting the rules – follow the guidance

If you are a developer or publisher looking to publish games and you want respected YouTubers to play and promote your game to potential customers, you should always follow both local advertising guidance and the content host’s terms of service. CAP has specific guidance on Advertisement Features (such as the Shadow of Mordor video) and is defined as an “announcement or promotion, the content of which is controlled by the marketer, not the publisher, that is disseminated in exchange for a payment or other reciprocal arrangement”.

Where this is the case, you will need to ensure the following:

In respect of identifying the video as an advertisement feature:

  • Marketers and publishers must make clear that advertorials are marketing communications, for example by heading them "advertisement feature" (as typically advertising features still follow the style of the influencer’s own videos)
  • The term ‘advertorial’ should be avoided because it does not make sufficiently clear to the uninformed reader whether the feature is an advertisement or an editorial.

In respect of the content of an advertisement feature:

  • “Marketing communications must not materially mislead or be likely to do so.”
  • “Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims.”This would typically be by only highlighting the positives of a game and not the bugs, glitches and overall deficiencies.

Conclusions

As with any dealings with individuals, businesses including games publishers should be absolutely clear when they are paying an influencer on social media to promote a video game in the style of a normal video by that influencer such as a play through or play review. If in doubt, honesty is the best policy when it comes to advertising!

About the author

Thomas Coe Solicitor

Thomas assists a wide range of businesses across various sectors, from small owner managed businesses to multinational companies in areas of general commercial law as well as more specific areas such as internet and e-commerce law, agency and distribution and outsourcing.