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Working with influencers and game/app advertising: a quick legal guide

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Legal update on working with influencers/vloggers/Lets Players as well as online advertising for video games (in-game advertising, in-app advertising and advertising on digital broadcast platforms like YouTube and Twitch). Provided by Jas Purewal and Isabel Davies of Purewal & Partners

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Working with influencers and game/app advertising: a quick legal guide

  1. 1. Working with influencers and game/app advertising: a quick legal guide Jas Purewal & Isabel Davies November 2016
  2. 2. Who we are! Jas Purewal Isabel Davies Purewal & Partners is a digital entertainment and tech law firm specialising in video games, esports, digital broadcast and tech. In the digital broadcast space we advise influencers, brands and broadcast platforms.
  3. 3. What we’ll talk about • A focus on disclosure and how this differs between markets. • Some examples as to how it works in practice, and what the regulators seem to be looking out for right now. • FAQs and other questions! • A look at social media platforms and any disclosure functions they have. • A look into inappropriate advertising in-game and on video platforms, plus some case studies.
  4. 4. Some stats. . . 459,366 years worth of content was streamed in 2015 on Twitch. Twitch Instagram and Twitter have approximately 400 million and 320 million users respectively. BrandWatch YouTube is the third most visited site and second largest search engine in the world. BrandWatch The time people spend on YouTube has more than doubled year over year. Think With Google Nearly 80% of social media time is now spent on mobile devices. comScore
  5. 5. It’s only getting bigger. . . 10.1 billion total views 39.3 million subscribers 1.8 billion total views 15.5 million subscribers 1.9 billion total views 10.5 million subscribers
  6. 6. And the games companies are noticing! • For example, developer Bethesda as policy no longer hands out advanced review copies of its games to traditional reviewers…. • . . . Instead, for Dishonored 2 (out last week) they released preview builds of the game to a bunch of influencers (and sponsored them too).
  7. 7. Disclosure
  8. 8. Evolving rules. . . • Advertising/marketing regulation varies by country: For example: • UK = self regulation (Advertising Standards Authority) • USA = self regulation + government regulation (FTC + state authorities) • Germany = federal + state regulation. • This was always going to apply to new advertising methods, but took time… • Horizontal claims / class action lawsuits.
  9. 9. Disclosure on Video Platforms: UK • CAP Code: “marketing communications” must be “obviously identifiable as such” and “make clear their commercial intent, if that is not obvious from the context”. • Regulator: Advertising Standards Authority (ASA) via CAP Code. • ASA have released video platform paid content guidance (and made rulings…)
  10. 10. Disclosure on Video Platforms: US • Monitored and enforced by the Federal Trade Commission (Federal Trade Commission Act). • Some (complicated) guidance. FTC rulings. • “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce” are unlawful.
  11. 11. Disclosure on Video Platforms: Germany • The 14 German media authorities recently published guidelines as to what kind of disclosure may be required. • The German State Broadcasting Treaty (RStV) states that “advertising and teleshopping must easily be recognizable as such and distinguishable from editorial content.” • Similar provisions in Telemedia Act (TMG) and the Act against Unfair Competition (UWG).
  12. 12. IDENTIFYING YOUR PROMOTIONAL DEAL Brand shouldmake a clear disclosure thatyou werepaid. Include a disclosure in videotitle (e.g. ‘promotion’). No disclosure required . (Unless youare expected to give a positive review forit). See Advertorial box forrecommend disclosures (butprobably notnecessary toinclude itinthevideo title). Advertorial: Include a brief disclosure in thevideo title(e.g. ‘advertorial’,‘paid placement’) and also inthedescription box (before the“show more” button). Hyperlinking todisclosures is insufficient. Add labels/tags tosocial media about thevideo. No need toinclude specific disclosures IF commercial elementofvideo is clearly separable fromtherestof it. WHAT ABOUT STREAMING? Theguidance isn’tclear yet.Best practice: writtendisclosure on-screen or indescription during thestream.Next best:atreasonably prominentpoints during thestream(especially near the paid-forcontent). Do you have full editorial/complete controlover the video’s content? Does themajority ofthevideo concern thepromoted product? Is thevideo being uploaded tothe sponsor’s channel and promoted via sponsor social media? YES NO YES YES NO YES NO YES NO NO Have you been paid by another person to produce a video?Are you promotingyour own brand orproducts? Flowchart (UK/US)
  13. 13. The Details Are you paying for the vlogger/influencer to make the content? Disclosure needed. Are you exerting creative/editorial control? Disclosure needed Products provided for free? Depends on editorial control and if there are any other payments. What disclosure is needed? UK rulings suggest that “ad” or “advertisement feature” and not “sponsored by”/ “supported by”. US FTC Q&As have stated using “Ad” too. Germany’s recent guidance = “advertisement” overlay or “sponsored by”/”supported by”. Is the brand hosting the content? UK = no disclosure US & Germany unclear, but possibly.
  14. 14. What do platforms do? • Twitch provides “sponsored” tags for videos for Twitch-driven campaigns only (i.e. they are not available for streamers). • YouTube has a new disclosure function where vloggers can opt to add a “paid promotion” label when they upload their video. • Question for platforms: do they try and make an effort and take on some legal risk themselves? Or do nothing and leave it up to the influencers/brands at the risk of making themselves look bad?
  15. 15. Disclosure: Other Social Media • The ASA = “#ad for the avoidance of doubt” and “#sp” was considered not sufficient. • The FTC = use examples such as “Sponsored”, “Promotion” “Paid ad” or starting a post/tweet with “Ad:” or “#Ad. • German media authorities = “Advertising” and “Ad” are suitable for social media disclosures. Also accepted that “#ad”, “sponsored by” and “powered by” were also acceptable.
  16. 16. Disclosure: Case Studies
  17. 17. ASA: Mondelez (Oreo) • Vloggers were all paid (and provided with free Oreos) to create YouTube videos. • Some specific disclosures BUT at the end of video/below the fold. • Phrases used such as “working with Oreo” /“Thanks Oreo for making this possible!”. • Did not establish the commercial intent of the videos + no disclosures were before consumer engagement with the videos. Upheld.
  18. 18. FTC: Machinima • Machinima (on behalf of Microsoft) had paid influencers on YouTube to endorse the Xbox One and several games ‘virally’. • FTC = Machinima had misrepresented the influencers as independent users + no prominent disclosure. Upheld. • No fines payable on this instance. Consent order for next 20 years.
  19. 19. FTC: Warner Bros • WB failed to properly disclose that it paid influencers thousand of dollars to post positive gameplay videos on YouTube and social media of Middle Earth: Shadow of Mordor. • WB had instructed to put disclosures in the description. • But disclosure was “below the fold” and no disclosure on social media. Upheld. • “Publicly” no fines/penalties. Consent order for 20 years. Privately. . .
  20. 20. ASA: Alpro • Influencer tweeted about Alpro without proper disclosures. • The influencer drafted the tweets but they were approved by Alpro. • ASA also noted the contract stipulated that she would not promote competitor products and Alpro would own all deliverables. • The ruling was upheld as the tweets did not contain a clear identifier, such as “#ad”.
  21. 21. FTC: Lord & Taylor • Paid 50 influencers to post Instagram pictures of themselves wearing the same dress from a new collection. • Failed to disclose that they had given the dress and paid them thousands of dollars in exchange for the endorsement. Upheld. • No financial penalty, but consent order for next 20 years.
  22. 22. Tips 1. Think about the contract- the regulator may ask to look at them! (But don’t go over the top. . .) 3. The platforms will not help much, if at all. 2. Be careful of ‘enforced virality’ (i.e. trying to make your videos look like they’re genuinely viral but not adequately disclosing). 4. Not much international consistency. 5. It’s getting harder. Regulators are becoming more aware of these issues.
  23. 23. Advertising & Games
  24. 24. 24 Where are games companies advertising? Print/Online Broadcast Video In-Game
  25. 25. Advertising to children • ASA very active: in-game/app adverts, also also adverts on YouTube/other video platforms. • Regulators seem interested in different things (e.g. FTC on junk food, ASA on adult content).
  26. 26. Inappropriate Ads: Case Studies (In-Game)
  27. 27. ASA: My Talking Tom • Two adverts containing naked women were served in the game both seen by children. • Despite the fact that both sets of adverts were likely due to an ad partner error, the game was considered of “particular appeal to children” and the actions were upheld. • “Adequate procedures” not in place = could not identify which third party network may have served the adverts.
  28. 28. ASA: Planet of Cubes • An advert for “Call of Duty: Advanced Warfare” (18 rated) appeared in the app. • Activision-Blizzard: ad was not shown to users with no browsing habits or if they showed browsing habits of a child. • Age data showed the majority of users were adults, but with some 13-17 year olds. • ASA = even though the game was rated as low maturity on app stores, the content of the advert itself had only mild violence and would not likely cause harm to children, so was not upheld.
  29. 29. ASA: Real Football 13 • A trailer for “The Purge”, a horror film (15 certificate) appeared in the game. • Universal Pictures and Gameloft = 82% of users were over 18. • Only served between of 8pm and 6am, then changed to 9pm. • ASA = game could appeal to children & teens + Facebook stats not sufficient to demonstrate responsible targeting. • However, the fact that the ad was time-targeted and the complaint was at 9pm, the claim was not upheld.
  30. 30. Tips for advertising in games 4) Be prepared to show other steps you have taken to ensure responsible targeting. E.g. correlating with browser history and time-targeting. 1) Be wary of ‘adult’ content advertising in your game. 2) Context is key; some adverts may be considered “adult” but not necessarily so bad as to likely “cause harm” to children. 3) Age data/age ratings will not necessarily help you in proving you have targeted responsibly. 5) Be aware of what your ad networks are doing.
  31. 31. Inappropriate Ads: Case Studies (Video Platforms)
  32. 32. ASA: Bethesda • YouTube ad for “The Evil Within” shown on a video about a Thomas the Tank Engine playset. • AdWords = targeted ad at males 18-35 + signed into their YouTube accounts. • ASA = bad that it could be targeted to non-signed in users. There was a possibility that users under the age of 18 could be served the ad; action was upheld. • However, no guarantee it would not be served to non-signed in users who had previously searched for horror movies and/or video games.
  33. 33. ASA: Lionsgate UK • Complaint was focused on whether the ad was distressing/offensive, not that it was inappropriate for children. • Data = 78.8% of Twitch’s audience was 18 or over and were accustomed to violence in a “surreal and stylised setting”. • ASA = the advert was unduly graphic and that, unless targeted carefully, could cause unjustified distress. The action was upheld. • “Turbo Kid” trailer (15 certificate) appeared during a Twitch stream of the League of Legends World Championships.
  34. 34. ASA: Spencer FC • YouTuber Spencer FC and Carlsberg. Appropriate for children? • Data: 85% over 18. Similar channels = under 18s made up less than 25% of the user base. Not age gated. Content not deemed irresponsible. • ASA = collecting “logged in” data was best industry practice and used most robust data they could. • Also pointed out specific CAP code rule on alcoholic drinks (25% audience can’t be under 18). The action was not upheld.
  35. 35. Tips for advertising on video platforms 2) Be aware of specific rules around certain products and services- e.g. alcohol. 1) Be wary of adverts that may be particularly gory or graphic; even these type of adverts when targeted at some adults can be considered to be inappropriate. 3) Again, age data cannot always be relied on and often additional targeting is expected. 4) Limit your advertising to signed-in users where possible.
  36. 36. Other industry hot topics • FTC investigation into YouTube Kids. • YouTubers + skins gambling. • YouTube and music collection societies.
  37. 37. Thanks! 37 ........................................................ E: W: M: +44 774 760 3449 T: @gamerlaw ........................................................ ........................................................ E: W: M: +44 774 760 3449 T: @IsabelDavies_ ........................................................