Do I have to tell my audience if I’ve received a game and then reviewed it?

24 Comments / By / December 13, 2017 / Digital Media, Internet, Video Game Law

Congratulations! You’ve received your first video game from a developer or publisher as a gift and your review has been requested (or paid for). Do you have to tell your audience the behind-the-scenes details? Let’s take a step back here.

Defining an influencer

An influencer is a person who may be a celebrity or, even if they’re not known to the general public, they may have a large following online or offline about a certain topic. You are probably an influencer in some capacity if you’re on social media. Brand ambassadors, evangelists, influencers – different words for the same thing. Typically, if you’re an influencer, you have received money, discounts, or free goods in exchange for posting about a brand and/or its products.

The common phrase used here is the word “endorsement” when an influencer posts in support of a product or brand. It could also be referred to as a testimonial or an affiliate agreement. The Federal Trade Commission (FTC) oversees influencers, endorsements and trade practices in this arena.

What is disclosure?

Disclosure means as an influencer, you have told your audience in a legal fashion that you are being paid, either directly or indirectly, for your promotional posts. Disclosure must be obvious. If you’re an influencer, for example, you need to include hashtags that make it clear that your tweet is sponsored (like #ad, #Sponsored, Paid ad). Disclosures must be clear and conspicious – even on Snapchat, a non-text-based platform.

Here are some recent examples of disclosed tweets from influencers (although, whether a #sponsored, #paid or #ad tag is sufficient disclosure has yet to be litigated):

Erring on the side of caution

As an influencer, the primary recommendation here is to err on the side of caution. Disclose that free game or paid review.

As a developer or publisher, make sure you have contracts with your influencers that require disclosure and cover your own liabilities. If you’re paying people to promote your goods or providing them with free/discounted games, the onus typically has been on you to train your influencers and follow up with them on adequate disclosures. Companies need to monitor their influencers and correct failures in disclosure.

In September, the FTC tried to make clearer examples on disclosures for social media platforms and reached their first settlement with social media influencers over failures to properly disclose deals. Previously, the FTC primarily only focused on the brands and companies supplying influencers with goods but they are now beginning to punish influencers directly for not complying with legal trade practices. Influencers are now just as responsible as brands and companies for keeping audiences aware of paid posts.

Why take the risk? Disclosure is easy. Say what’ve you got. And the FTC makes all of this available in pretty clear language.

A real-world example

If you need a number, the FTC has stated that brands or influencers are liable for civil penalties of up to $11,000 per violation.

But just a few years ago, the FTC went directly after Deutsch LA and Sony as they encouraged employees to use personal social media accounts to promote the PlayStation Vita without ever disclosing their affiliation with the corporations. The specific hashtag in question was #gamechanger and the FTC claimed that this advertising was misleading because the people posting about it had never actually used or purchased the device, on top of not disclosing their links to the businesses.

This was the first known instance of the FTC taking action against an agency on Twitter and it directly impacted the video game industry.

If you feel confident that your wallet can handle an $11k (or more) hit for every time you don’t disclose compensation for a post, you do you. But erring on the side of caution and stating in some capacity that a company has compensated you for your opinion could save you a ton of money in the long run.

Megan

Megan is a video game industry veteran and guest blogs at Odinlaw.com

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