The FTC has recently focused its enforcement efforts on influencer campaigns. An influencer campaign, instead of marketing a product directly to a consumer, inspires, hires, or pays influencers to market a product to a larger consumer base. While an influencer campaign may be an effective way to market a product to a greater number of consumers, some companies have run into trouble with the FTC. For example, Lord & Taylor recently settled charges over its paid use of 50 fashion influencers. Similarly, Machinima, Inc., a promoter for Xbox One, settled charges in September 2015 that it deceived consumers with endorsement videos posted by paid influencers. Now, the FTC has announced Warner Bros. has agreed to settle charges over an influencer campaign related to the popular video game Middle Earth: Shadow of Mordor.
Warner Bros. Middle Earth: Shadow of Mordor Influencer Campaign
The FTC’s complaint against Warner Bros. arose out of an influencer campaign from late 2014. The influencer campaign was designed to generate publicity and excitement as it related to “the new release of Middle Earth: Shadow of Mordor, a fantasy role-playing game loosely based on The Hobbit and the Lord of the Rings trilogy. It was released in September 2014 for the PlayStation 3 and in November 2014 for the Xbox 360,” the FTC said in its press release announcing the settlement. Specifically, the FTC alleged that “Warner Bros., through its advertising agency Plaid Social Labs, LLC, hired online influencers to develop sponsored gameplay videos and post them on YouTube.” Additionally, the FTC says that Warner Bros., as part of its influencer campaign, instructed influencers to promote the video ads for Shadow of Mordor via Facebook and Twitter.
The FTC’s complaint sets forth that each influencer video had to meet certain criteria, including that the influencer’s video will:
- Feature gameplay of the [Shadow of Mordor video game]
- Have a strong verbal call-to-action to click the link in the description box for the viewer to go to the [game’s] website to learn more about the [game], to learn how they can register, and to learn how to play the game
- Promote positive sentiment about the [game]
- Not show bugs or glitches that may exist
- Not communicate negative sentiment about WBIE, its affiliates or the [game]
- One Facebook post or one Tweet by Influencer in support of Video
FTC Says Warner Bros. Paid Influencers, but Did Not Require Necessary Disclosures
The FTC says that Warner Bros. “paid each influencer from hundreds to tens of thousands of dollars, gave them a free advance-release version of the game, and told them how to promote it.” The FTC also allegedly “required the influencers to promote the game in a positive way and not to disclose any bugs or glitches they found,” as well as failing to instruct “influencers to include sponsorship disclosures clearly and conspicuously in the video itself where consumers were likely to see or hear them.” Warner Bros. also failed to require influencers to disclose the fact that they were paid for their endorsement videos, the FTC alleged.
Instead of requiring the necessary disclosures, the FTC asserts that Warner Bros. “instructed influencers to place the disclosures in the description box appearing below the video.” However, “[b]ecause Warner Bros. also required other information to be placed in that box, the vast majority of sponsorship disclosures appeared ‘below the fold,’ visible only if consumers clicked on the ‘Show More’ button in the description box.” The “Show More” button was not included “when influencers posted [their] YouTube videos on Facebook or Twitter,” thus “making it even less likely that consumers would see the sponsorship disclosures,” the FTC said.
FTC Alleged Warner Bros. Influencer Campaign Misled Consumers
The FTC’s complaint alleges that Warner Bros., through the aforementioned influencer campaign, “misled consumers by suggesting that the gameplay videos of Shadow of Mordor reflected the independent or objective views of the influencers. The complaint also alleges that Warner Bros. failed to adequately disclose that the gamers were compensated for their positive reviews.”
Warner Bros. Barred From Misrepresentations Surrounding its Influencer Campaigns
The proposed order settling the FTC’s charges bars Warner Bros. from failing to make the necessary disclosures as it relates to its influencer campaigns in the future, and that Warner Bros. is further barred from misrepresenting that “sponsored content, including gameplay videos, are the objective, independent opinions of video game enthusiasts or influencers.” The order also “specifies the minimum steps that Warner Bros., or any entity it hires to conduct an influencer campaign, must take to ensure that future campaigns comply with the terms of the order.” The necessary minimum “steps include educating influencers regarding sponsorship disclosures, monitoring sponsored influencer videos for compliance, and, under certain circumstances, terminating or withholding payment from influencers or ad agencies for non-compliance,” the order sets forth.
YouTube Influencer Speaks Out Against Involvement with Warner Bros. Influencer Campaign
While the FTC has settled its charges with Warner Bros., at least one of the “YouTube influencers” associated with the case is speaking out about the nature of his involvement in the influencer campaign. YouTuber, Felix Kjellberg, known as PewDiePie in the YouTube world, has said he is being unfairly associated with the Warner Bros. influencer campaign, and that he properly disclosed his paid involvement. “A lot of YouTubers were involved in this sponsorship,” says PewDiePie, “but since my name is the biggest YouTuber, my name is the only one that pops up.”
PewDiePie has said he disclosed his relationship with Warner Bros. (“WB Games”) “in the ‘About’ text section of the YouTube video, even though he was not legally obligated to do so at the time.” PewDiePie has said that since the incident with Warner Bros., “he includes footage preceding any sponsored video to note that relationship.” However, he maintains that “he was not required to make that type of a disclosure prior to 2015, and the Shadow of Mordor video in question comes from 2014.”
“Yes, I could have disclosed it better (in 2014),” PewDiePie says. “I could have put it above the fold. So basically, all of these news articles are using me as a clickbait, putting my name to shame, when I didn’t even do anything wrong.”
* Photo Cred.: plati.com