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Pete Lewin and Jas Purewal, interactive entertainment lawyers at Purewal and Partners, have created an easy-to-use guide for developers and influencers to help identify what disclosures (if any) are legally required when it comes to paid content.
[Pete Lewin and Jas Purewal are interactive entertainment lawyers at Purewal & Partners, London. This is a condensed version of their full guide, available here (originally published December 2015).]
TL;DR Whether you’re a developer, blogger, vlogger, YouTuber or streamer, when it comes to creating paid content, there are certain legally required disclosure requirements you need to know about. Consumer protection bodies in the US (the FTC) and the UK (the CAP/ASA) have created rules and guidance intended to promote greater transparency amongst those making and paying for paid content, which we’ve already seen being enforced through a number of important rulings from both the FTC and ASA. This guide aims to be an easy-to-use tool for influencers to help identify what disclosures (if any) are legally required for their content.
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Back in December 2015 we prepared our guide for YouTubers and streamers on paid content and legal disclosures – owing to recent events, now seems like a good time to dust this off. While you can read all about this in much greater detail in our full guide, available here, for current purposes all it’s important to know is that consumer protection bodies in both the US (the FTC) and the UK (the CAP/ASA) have created rules and guidance intended to promote greater transparency amongst those making and paying for paid content. As a result, whether you’re a developer, blogger, vlogger, YouTuber or streamer, when it comes to creating paid content (or even promoting your own products), there are certain legally mandated disclosure requirements you need to know about.
What are the relevant rules and guidance?
In the US, these can be found in the Federal Trade Commission Act, the FTC Guidelines and a series of FTC Q&A. In the UK these can be found in the CAP Code and CAP Guidance. For two detailed examples of how these have been enforced by the FTC and ASA to date, please refer to our full guide.
What are some of the ‘golden rules’ of disclosure?
Both the influencer and the sponsor are responsible. If a regulator gets involved it will very likely take action against both of them.
Disclosures need to be prominent and clear. At the start of the video, in the description box, potentially at the end – see pages 9 + 10 of our full guide for the detailed guidance, but however it is done, the disclosures need to be prominent and clear.
If in doubt, go for more disclosure. The uniting theme of all the regulations (US and UK) are to be clear with consumers and not to mislead them. If there is any doubt about what to do, it’s better to be more transparent with consumers than less.
No magic bullet answers. The regulatory guidance is intentionally opaque to provide regulators flexibility to operate, meaning there often are no definitive answers to questions – if in doubt, take advice.
There’s little international consistency. The UK and US authorities take slight but important differences in their approach. Most other countries have not even provided any guidance at all yet. For these reasons, there is unfortunately no absolutely definitive legal way to ensure international compliance. However, our practical guidance should provide a reasonable measure of help.
Where the above flowchart states “More info: see [X]” – please refer to pages 9 + 10 of our full guide for further details and ‘best practice’ recommendations on how to make the required disclosures.
Some rapid fire Q&A
Do I really have to do all of this? Technically, yes: these rules apply whether you have 10 viewers or 1,000,000. In practice, the risk of enforcement by regulators is probably higher the bigger your channel is but, still, it’s worth following this stuff.
But isn’t it obvious when I’m promoting a product? While it may be to you, it may not be to the viewers (particularly minors). The whole point of the rules is so that viewers know the circumstances that *may* be influencing what you’re saying.
Okay – in a nutshell, when is disclosure required? Any time you have received free products (or are promoting your own), been paid or received stuff in order to make a video.
What do I have to say? This is tricky since the rules around the world aren’t consistent, but the basic idea is: if you’ve been paid, make it clear you’ve been paid - if you’ve been given free stuff, make it clear you’ve been given free stuff. If you’re promoting your own stuff, make this clear. Ambiguous wording like “Thanks to my friends at [X] for making this video possible” is not sufficient.
Where do I have to say this? Rule of thumb: don’t hide it away in lengthy video descriptions or in the last 10 seconds of a video – be clear and upfront about it. For example, put the disclosure at the top of the video description and make a verbal disclosure in the video itself. Best practice would be to include a disclosure in the video title / thumbnail, so viewers can identify an ad before they click on the video.
What if I’ve been given a copy of a game to review or let’s play? A simple disclosure in the video itself and the description that you’ve been given the game for free is probably sufficient here (but see our detailed guidance for more info).
What if I talk about the same product in multiple videos? Since it is possible viewers will not watch every one of your videos, a separate disclosure should be made in every video concerning the sponsored product.
What about old videos I’ve already posted? Best practice is for the disclosures to apply in all videos (and there has been at least one case where a YouTube channel had to update its old videos). In practice, the sooner you get compliant, the less work will be required over the long term.
What about streaming? The guidance is not yet clear. A disclosure at the start or end of the stream alone may not be enough. Best practice is to make a disclosure at the start and at reasonably prominent points in-stream (especially the bits where paid content is involved).
Conclusion
While there’s no single answer that covers every single type of content or promotional model, the overarching principle across both the US and UK is that of transparency – if there’s a chance that the benefit an influencer is receiving might influence how a viewer evaluates that influencer’s endorsement, the viewer should know about the commercial relationship.
If there’s anything you would like to discuss further from this piece or our full guide, please feel free to contact Peter Lewin ([email protected] / @LegalGamerUK) or Jas Purewal ([email protected] / @GamerLaw) or visit www.purewalandpartners.com. Needless to say, please do not rely on this note as legal advice and always take advice specific to your facts and circumstances.
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