in popular video games Shadow of Mordor, players won’t just chop, slash, and plunder at will. They fight specific opponents through a feature called the “Nemesis System.”In FTC lawsuit against Warner Bros. Home Entertainment, truth in advertising has a nemesis: paid promotion Shadow of Mordor Warner Bros. deceptively claims to be an independent review. Read on for a surprisingly candid statement from one of the influencers.
help start Shadow of Mordor, Warner Bros. hired a social media company to coordinate a YouTube influencer campaign.One tactic is to hire influential gamers to post videos to promote Shadow of Mordor – A video that ended up with over 5.5 million views on YouTube.
In addition to free games, Warner Bros. pays influencers anywhere from a few hundred dollars to five figures in cash. Influencer videos require pre-approval, and Warner Bros. “will be deemed the author and exclusive owner” under the terms of the agreement.
Warner Bros. has very strict other requirements for influencers:
- “The video will feature gameplay” Shadow of Mordor game.
- “The video will have a strong verbal call-to-action, asking viewers to click on a link in the description box to be taken to [game’s] website for more information [game], learn how they sign up, and how to play the game. “
- “The video will promote positive sentiment towards the game.”
- “The video does not show possible errors or glitches.”
- “The video does not convey negative sentiments about Warner Bros. Home Entertainment, its subsidiaries, or the games.”
Warner Bros. is also asking “influencers to publish a Facebook post or tweet in support of the film.”
Posting “positive sentiment” for cash? This sounds like what the FTC says is a material connection between advertisers and endorsers that should be clearly and conspicuously disclosed.For FTC watchers, this is where the story becomes almost as Shadow of Mordor.
According to the complaint, influencers were instructed to place their sponsorship messages in the text of the description box (i.e., the accordion below the YouTube video) rather than in the video itself.In addition, they were told to provide “relevant [the game] “Above the fold” in the description box, and “the description box will include an FTC disclaimer disclosing that the post is sponsored.”
But as the first example shows, only the top lines of the description box are immediately visible. Consumers won’t see the sponsorship reveal without clicking the “Show More” button and possibly scrolling down – especially since Warner Bros. mandates that game information must come first.
The second screenshot shows an example of sponsorship information at the end of an expanded “Show More” box and illustrates the (perhaps unintentional) FTC’s focus on location disclosure. In this example, the player writes “This video is sponsored by Warner Bros.” and subsequently issued this persuasive statement: “No one has read such a detailed description…what are you doing snooping around.”
That’s exactly how we feel, man.
In other cases, influencer videos include half-hearted sponsorship disclosures — for example, “This is one of my favorite sponsored games, so thanks I can play it for free!!” — that aren’t mentioned. In addition to free games, Warner Bros. paid them thousands of dollars.
Complaint alleges Warner Bros. made false statements Shadow of Mordor Game videos reflect the independent opinions or experiences of unbiased gamers. The FTC also alleges that in many cases, Warner Bros. failed to disclose or failed to adequately disclose influencers’ material ties to the company. Among other things, the proposed settlement requires Warner Bros. Home Entertainment to clearly disclose material ties to influencers or endorsers. Additionally, it creates regulations to educate and oversee what influencers do on behalf of the company and, in some cases, requires Warner Bros. to withhold payments or terminate influencers or advertising agencies who don’t comply.
What compliance advice can others receive from the proposed settlement?
Disclose material connections clearly and conspicuously. If there is a connection between the endorser and the advertiser that is unexpected by consumers and affects the way they evaluate the endorsement, this connection should be revealed. But that’s not all the law requires. Sponsorship statements or any other disclosures necessary to prevent deception must be clear and conspicuous. A “disclosure” that consumers are unlikely to read is not really a disclosure at all. FTC staff reiterated this point in “.com Disclosures: How to Disclose Effectively in Digital Advertising”: “Disclosing content only in certain places in an ad where consumers are likely to find it does not meet the clear and conspicuous standard. .”
No one knows how to make disclosures clear and compelling than advertisers. The Warner Bros. settlement builds on earlier cases challenging incomplete disclosures and resolves alleged invalid disclosures. “But how to get the message across effectively?” some advertisers ask. Really? Advertisers are in the business of being “clear and compelling.” A rule of thumb is to use proven principles to effectively communicate your marketing messages. For example, in the context of YouTube, the overt content in a video may be clearer than the language hidden in the description box.
Consider how consumers will view your ad. Warner Bros. instructs influencers to disclose sponsorship information in the YouTube description box, but then also requires them to promote their videos on Facebook or Twitter. But when influencers comply by posting videos on Twitter or Facebook, consumers are even less likely to see the information because there’s no “Show More” button on those posts. The .com disclosure also addresses this issue: “If a particular platform does not provide the opportunity for clear and conspicuous disclosure, then that platform should not be used to disseminate advertising that requires disclosure.”
Notice what others do for you. For future influencer campaigns, the proposed settlement outlines the steps Warner Bros. must take to monitor influencer behavior. Of course, the settlement only applies to that company, but the FTC’s Endorsement Guidelines: What People Ask for provides advice on how savvy marketers can train and monitor members of their networks.
You may submit comments on the settlement until August 10, 2016.
