Warner Brothers gets fined by FTC, PewDiePie skates free

This should be familiar story by now, one that we've been writing about for more than a decade believe it or not, but yesterday people were shocked! Because another big wallet company jumping on the native content bandwagon ignored the FTC rules when they asked an influencer to pretend their review was independent and not paid for, and got their hand slapped as a result. Because even though the internet still seems like the wild west, people are still paying attention and there are rules.

In this case, Warner Brothers paid Felix Kjellberg, aka PewDiePie and nine other Youtube influencers to favorably review its game. But since they didn't clearly disclose it, Warner Brothers Home Entertainment got a dressing down from the FTC. The game in question was Middle Earth: Shadow of Mordor. According to CNET "Those involved in the campaign were paid between hundreds to thousands of dollars for their participation, created sponsored videos that garnered more than 5.5 million views, received advance-release copies of the game and were told how to promote it. The arrangement required the influencers to promote the game positively, and to not disclose any bugs or glitches found while playing." Because PewDiePie's video was watched 3.7 million times, he is now this year's poster child for smarmy behavior.

Warner Brothers is taking the blame for instructing its influencers to not disclose this information outright, to keep the sponsored ad under wraps and make it feel more native. How this was done was simple: put all the pertinent info beneath the "show more," link, knowing very few people would bother. And thus a hidden disclosure it was. The FTC had a field day with making Warner Brothers an example although they weren't fined so much as hauled in the principal's office.

Jessica Rich. director of FTC’s Bureau of Consumer Protection, said "Companies like Warner Brothers need to be straight with consumers in their online ad campaigns." And this is very true indeed. Where I call bullshit on the FTC is in letting the influencers like PewDiePie slide without also getting their asses handed to them, because there's not one damn influencer on Youtube or Steam or Twitch who doesn't know how this shit works by now. Moreover, PewDiePie isn't some independent gamer just doing it for kicks. He's a multi-millionaire who is part of Maker Studios. This year, he launched his own network called Revelmode, on Maker Studios which is itself a multi-channel network owned by Disney. Are you really trying to tell me no one at Maker Studios has any idea how this shit works? No one there ever said "Hey Swedish dude, maybe you should like, disclose the fact this isn't an independent review but you're being paid to like it?"

Deutsch L.A. settled with the FTC for deceptive advertising on Twitter. "One of Deutsch LA’s assistant account executives sent a company-wide email asking the agency’s staff to promote the PlayStation Vita ad campaign that the agency was working on by posting positive comments about the device on Twitter using the hashtag #gamechanger"...but didn’t disclose their connection to the agency or Sony. The FTC claimed these tweets were misleading because they didn’t reflect the views of actual consumers who had used the device."

The FTC also went after fashion retailer Lord & Taylor for similar practices stemming from late 2014. The FTC's rules have more or less been unchanged since 2010, stating one has to disclose the relationship between endorser and brand in a clear manner, so one can't claim ignorance. The endorsement guides were updated in 2012 with what amounts to a "no, really, we mean it," underscore. My point is, there is no one on Youtube or in social media from 2010 on who is not aware of best practices. PewDiePie can't even claim Swedish ignorance since Maker Studios is based in Culver City in Los Angeles.

And for full disclosure: I used to work on a video game account and talked to some of the people at Maker Studios when we wanted to use one of their influencers, (not PewDiePie.) What I know for a fact is the big name influencers whether part of Maker or not are repped by agents, who are in the business of making money. Maker Studios has this to say on its page:

"Maker understands all aspects of YouTube content creation and what it takes to build a successful digital career. We cultivate new creators, take existing creators to the next level and build lasting brands with engaged audiences.
Maker develops sustainable programming and builds large audiences. Offerings to partners may include development, production, promotion, distribution, sales, marketing, access to royalty free music for content creation, and custom merchandise solutions."

The other party in question who should be held accountable in my opinion is Plaid Social Labs the social media firm hired by Warner to broker the deal. Plaid Social Labs "told influencers to only disclose that the review was sponsored content at the bottom of the “Show More” box beneath the video, rather than in the video itself. This meant viewers who didn’t click on the description, along with those who watched the review on Facebook or Twitter, would assume it was an independent opinion.
In some cases, reviewers completely failed to state that they had been paid to make the video. They only disclosed that they had received early access to the Lord of the Rings-based game." Considering how litigious advertising normally is, with Business Affairs cross checking so much, it's amazing to me Plaid Social gets away with this kind of behavior, too.

The FTC should go further than just filing complaints against the brand while letting the influencers and the majority of agencies go. Campaigns like this generally aren't created in a vacuum. Fingers need to be pointed at all guilty parties. It's the only way this issue will ever get fixed.

I know a lot of gamers are saying if you are too gullible not to realize these influencers are bought and paid for it's your own damn fault. And that's all well and good if you're an adult, but if you're a kid playing these games, your cognitive brain power isn't the same. Yes, I'm saying think of the children. It was the same during Saturday morning cartoons back in the day. You weren't allowed to advertise your product during your show because kids didn't know the difference. In other words, they weren't allowed to show G.I. Joe commercials during G.I. Joe the show. The same rules should apply because it's the same as some asshole like PewDiePie collecting tens of thousands of dollars duping kids into thinking he actually likes Mordor. For shame.