As the internet changes the way influential people speak to their audiences, the Federal Trade Commission in the United States is slowly enforcing its guidelines for how paid content should work on sites like YouTube, Instagram, and Snapchat.
But despite laying out those rules, some of the top personalities on YouTube seem ignorant of what’s expected of them.
Earlier this week, Warner Bros. Interactive Entertainment settled a dispute with the FTC after it failed to adequately disclose that it paid “influencers” to positively promote its Middle-earth: Shadow of Mordor game in 2014. In its press release, FTC mentions that the “wildly popular” Felix “PewDiePie” Kjellberg is among those who received thousands of dollars to speak in glowingly about the PlayStation 4, Xbox One, and PC action game that takes place in The Lord of the Rings universe. But while FTC focused its dispute on Warner Bros., the government organization’s rules also apply to individuals. And yet, PewDiePie, who runs the most viewed channel in the $3.8 billion gaming-video market, claims he did nothing wrong because he did disclose — although he may not have done so adequately.
PewDiePie is a Swedish YouTuber who is famous for making guttural noises in English while playing video games. He reportedly makes millions of dollars from his channel. And since his YouTube videos play in the U.S., his videos must follow FTC guidelines even if he does not live in the country.
In a new video titled “The PewDiePie ‘Scandal,'” the video star explicitly states that he did not violate FTC guidelines because he disclosed that Warner Bros. paid him for the video in the description of the original video (you’ll need to click on the “Read more” button in the description to find it).
“Basically, we weren’t required [by WB] to disclose, but I still did it,” PewDiePie said in his video. “Some other YouTubers didn’t disclose, but I’m getting all the shit for it. It’s kinda bullshit.
John “Total Biscuit” Bain, another popular gaming-related YouTube celebrity agreed with that assessment.
Pewdiepie is being brought up for clicks. He actually did disclose. Not well, but he did. Others didn't at all.
— John Bain (@Totalbiscuit) July 12, 2016
GamesBeat reached out to PewDiePie and Total Biscuit for their response to this story, and we’ll update this post if they decide to comment.
One of the problems with the stance the two YouTube stars are taking is that they are ignoring the key word “adequately” in the FTC’s press release.
While PewDiePie definitely did disclose, he didn’t do so in a way that satisfies the FTC’s 2009 guidelines put in place to deal with “mommy bloggers” that were taking money to speak positively about products without disclosing that fact to their audience. Those rules always applied to YouTube celebrities and Instagram stars, and the FTC has since repeatedly reaffirmed that.
Speaking specifically about YouTube to website Gamasutra, FTC associate director Mary Engle has said that it is up to the influencer themselves to make the disclosure impossible to miss.
“What we say is that [the disclosure] should be easily seen or viewed — or heard in the case of audio — by the consumer or by the viewer,” said Engle. “It should be made within the endorsement message, and within the review. We don’t prescribe particular words or phrases that need to be used, but some people might say ‘this is a compensated review,’ or ‘I got this free to try.'”
Engle added, “Disclosures should be clear and conspicuous, and should be upfront and easy to see where the viewer won’t miss it.”
Using that definition, a disclosure anywhere in a YouTube description is not enough on its own. Those videos could get embedded on Facebook or other websites where someone might never even notice the description. Not to mention that PewDiePie put the notice underneath the “read more” button.
Instead, the FTC wants the disclosures in the video themselves as near to the start as possible so it’s not possible for people to avoid them.
“Yes. I could’ve disclosed it better. I could’ve put it above the fold,” PewDiePie admitted in the video. But he then goes on to complain that the media is using his name as an example of inadequate disclosure in a promotional marketing video.
Finally, PewDiePie defends himself by pointing out that he is not a reviewer. The FTC’s rules, however, do not only apply to critics. The organization put these guidelines into place to stop influential people from passing off marketing messages as their honest feelings and opinions. Since PewDiePie is simply playing a game and having a good time without adequately sharing that someone paid him to do that, he is not following what the FTC expects from him — and he may not be aware that’s the case.