Many video games use individuals, commonly referred to as influencers, to disseminate positive messaging and create excitement. These influencers use their own social media accounts to show their use of the game. They can be paid for their services or receive in-kind value for their posts, such as free products or services, trips to venues associated with the game, and other kinds of valuable compensation. Regardless of how they are compensated, these all represent examples of a material connection between that influencer and the game. Any influencer who has a material connection to a game must disclose that connection in their sponsored social media posts.
A very common mode of delivering a positive message about the video game is with videos (produced or live-streamed) of the individual playing the sponsored game. Videos pose some unique challenges to make sure that a consumer will receive the influencer’s disclosure of a material connection between it and the game.
FTC Endorsement Guidelines and Additional Guidance
Individuals with a Material Connection Must Disclose
The FTC endorsement guidelines do not refer to influencers. Rather, any person with a material connection to a brand must make an adequate disclosure. A material connection may mean that a person is partly an owner of a company, or an employee, or they received early access to a game in exchange for a favorable review, or a coffee gift card. In other words, those people with an obligation to disclose a relationship are not limited to persons commonly understood to be influencers – people paid to promote the game.
Influencers and game companies should think expansively about who constitutes an influencer. A quid pro quo – cash for video – is certainly a relationship that requires disclosure. But, a person given advance access to a game may be an influencer. A person given exclusive access to the company and its developers may be an influencer. A person invited to a celebrity party hosted by the game company to promote the game may be an influencer.
Disclosing a Material Connection
Those with a material connection – including influencers – must disclose their material connection with the game. That disclosure must clearly convey the nature of the relationship between the game and the individual. One common disclosure is #ad. This hashtag is often used in Twitter and Instagram posts. Some blogs or podcasts will write / state that they are “supported by Game Co.”
Not all connections are the same – an employee promoting their employer’s game because they like it is not the same as a third-party influencer paid specifically for that purpose. The disclosure must convey the nature of the relationship.
Regardless of the platform, the disclosure must appear “above the fold.” In other words, the consumer must see any disclosure before they are asked to click “more” or a similar button or scroll down. Likewise, they must hear the disclosure up front; not at the end.
An influencer creating a video (whether or not live) about a game to which the influencer has a material connection should do the following:
- Disclose the relationship at the beginning of the video both verbally and in writing, in a cadence that affords the viewer an opportunity to read or hear the disclosure;
- Make the disclosure in clear, unambiguous terms;
- Include a written disclosure in the video description or caption that will appear without requiring the consumer to take any action (such as by clicking “more”) to view the disclosure on the published platform; and
- Repeat the written and spoken disclosures at appropriate periodic intervals through any lengthy video. If the influencer can include a perpetual badge on the screen disclosing the relationship, that would be even better.
Let’s consider the live stream of a video game. When the video gamer starts the game play, they should have a written disclosure on the screen as well as a spoken disclosure identifying their connection with the video game brand. That disclosure should use clear, concise, verbiage, such as “VIDEO GAME COMPANY provided me with an early release of GAME X, which I am now about to play for you.” If the game play lasts for a significant period of time, then this disclosure should repeat, such as, “Friends, just wanted to give a shout out to VIDEO GAME COMPANY, which provided me with an early release of GAME X so that I could play it for you.” This disclosure, as with the first, should repeat as text as well as audio as often as is necessary to ensure that new viewers see and hear the disclosure. If the streamer has the option to include a perpetual badge on the screen disclosing the affiliation to the game, then that would avoid the need to repeat the written disclosures. They should still repeat the spoken disclosures.
In addition, the description or the caption of the post should disclose this connection. A good rule of thumb is that the disclosure should appear by no more than three lines into the description, and if there is no option to provide a description, then the disclosure should appear in the caption. This might look like “Watch me play an early release of GAME X provided by VIDEO GAME COMPANY.”
To the extent that a social media site has tools that an influencer can use to disclose a material connection with the game, those tools may or may not be sufficient to disclose the connection. To be clear, use of tools embedded in the platform is not per se an adequate disclosure of the material connection. The overriding concern for all those associated with the sponsored social media post is that a consumer will understand that its creation is associated in some material way with the game referenced.
Who Must Comply
The influencer, any intermediary representing the influencer, and the publisher of the game must all ensure that the relationship between the influencer and the game are adequately disclosed. However, the publisher is ultimately responsible for what is done to promote the game. Therefore, the publisher should make sure that any intermediary has an appropriate program in place to train and monitor the influencers acting on behalf of the game. The intermediary must actually conduct the training and monitor the subsequent posts. Of course, if there is no intermediary then these responsibilities fall to the publisher itself. Even if there is an intermediary, it behooves the publisher to monitor the social media posts made on its behalf. Thus, although it is the influencer clicking “post”, “upload” or the like, it is imperative to the publisher, amongst others, that the disclosure obligations are satisfied.
Special Issues When Working With Children
Yes, kids can be influencers too. The disclosure rules do not change if a publisher hires a nine-year-old to market an app. Therefore, publishers and the agencies they engage should think about how they will ensure that a child influencer will comply with the disclosure obligations. A best practice is binding the child’s legal guardian or agent to guaranty that the disclosure will happen.
Special Issues When Working With Emerging Technology
The overarching obligation is to convey to a reasonable consumer that there is a material connection between a brand and an influencer. That message must be delivered prominently and up front. Therefore, when considering new social platforms, use the platform to understand how a reasonable consumer will use the platform. Then, determine how to make the disclosure on that platform so that consumers will see it / hear it.
Virtual Reality and Augmented Reality are emerging technologies that will present the opportunity to work with influencers. The rules do not change in the those technologies. A virtual avatar wearing a game’s logo may be required to state on the first interaction with any consumer that the avatar is paid by the game.
- When in doubt, disclose;
- Monitor disclosures to make sure that they are happening and happening appropriately;
- Have written contracts spelling out the terms of the relationship.