Messofanego
Banned
Blurred lines: Are YouTubers breaking the law? (Simon Parkin)
It's a great read about Youtube advertorials and disclosing, all of it. On giving a game's revenue share (especially independent game developers) to these Youtubers for bringing attention to it. We all remember the BF 4 launch with EA Ronku, and the XB1M13 campaign. I'm sure there are others.
Yogscast?
If you've been to British gaming conventions like EGX, you know Yogscast is a huge business (they even had a separate queue when entering EGX Rezzed, when I went there).Yogscast is the most viewed YouTube channel in the UK with more than 7 million subscribers. The channel began as a two-man operation, posting humourous videos about World of Warcraft. In recent years Yogscast has grown to a sizeable commercial operation with a multitude of presenters (some of whom are ex-journalists). In 2012 Yogscast became a registered company with a business team that now offers revenue-share deals to game developers: a limited time cut of games sales in exchange for coverage. After initially agreeing to an interview for this article, the Yogscast senior management instead offered a formal statement, which they then posted as an 'open letter' to Reddit ahead of this article's publication.
On the law:
Clarity and disclosure is not just a matter of personal preference. Since 2009 any US-based YouTube videos that provide a paid-for endorsement of a video game must abide with FTC regulations and clearly state the fact. Many who work in the industry, however, believe there is no such law outside of the US. "There are no regulations in the UK," says Channel Flip's Weaser. "There are only best practice guidelines."
But Weaser is mistaken: British law is unequivocal. Paragraph 11 of Schedule 1 in The Consumer Protection from Unfair Trading Regulations (CPRs) outlines a prohibition against 'using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).' This law has been in effect since 2008. The Office of Fair Trading illustrates the point like so: 'A magazine is paid by a holiday company for an advertising feature on their luxury Red Sea diving school. The magazine does not make it clear that this is a paid-for feature - for example by clearly labelling it 'Advertising Feature' or 'Advertorial'. This would breach the CPRs.'
The reluctance of some YouTubers to clearly mark advertorial is neither new nor something that's unique to YouTube: magazines and newspapers have long wrestled with the word. Even if a piece of advertorial provides a truthful representation of the writer or broadcaster's personal opinion, the label acts as a warning to readers and viewers that, at very least, there is a risk of prejudice.
But for David Bond, a lawyer at of Field Fisher, a London law firm that specialises in technology, media and communications, the law applies to any YouTuber paid by a manufacturer to promote a game, just as it does a magazine or newspaper. "In every case the financial arrangement should be disclosed," he says. The repercussions for breaking CPRs can be significant. "The enforcement body may apply to a court for an order to prevent infringements of the CPRs," says Bond. "Breach of an enforcement order could be contempt of court which could lead to up to two years imprisonment."
John Bain (Totalbiscuit) wise response to Yogscast open letter about their revenue-share coverage:
Seems like it should be present on the video itself as a watermark or disclaimer rather than through text in the description box that can be easily ignored.
Not everyone believes that Yogscast has gone far enough in its transparency with viewers. "A lot of us are not happy with what they're doing," said one YouTuber who asked to remain anonymous. "It reflects badly on all of us. It's not hard to find their sponsored content and it's not clear that this is what it is. Their audience is kids and they don't necessarily understand the nature of what's going on. They don't have to act this way; they have a huge audience."
I will 'like' your video for £10,000:
Some of the best-known YouTube celebrities offer far less than a commentated playthrough of a game to developers struggling to spread the word about their game. One PR agency, which asked to remain anonymous, tells the story of a YouTube celebrity who asked for a one-off payment to 'like' the trailer for one of the games that the firm was representing. "We were once approached by a prominent YouTuber outside the world of gaming who suggested we pay them £10,000 to 'like' a video," he told me - a simple action that would promote the video to the YouTuber's many subscribers. "We rejected it, but the feeling in the agency was that if they are asking for this kind of fee, then people are paying."
Indie developers (Mike Bithell):
But for independent game-makers who now compete with thousands of other unheard-of games, there is clear financial benefit to employing a powerful YouTuber to the cause. Convince someone with a sizeable audience to cover your game and you have bought yourself invaluable coverage. "It scares me to think how much it would have cost to market my game to the audiences TotalBiscuit, Pewdiepie and Nerd Cubed alone brought to the game," says Mike Bithell, creator of Thomas Was Alone.
Youtubers hold great power, "where channels hold games to ransom":
Despite the logic of the arrangement, Bain believes it is damaging. "The risk is that we end up with a situation where channels hold games to ransom and will refuse to cover a title unless the publisher offers a slice of the referral profits." Arguably, it's the large sums of money involved in the process that inspire these nested compromises. "The problem is you have an unregulated medium raking in shitloads of money whilst simultaneously being hailed as the maker-or-breaker of gaming," says Simon Byron, director of games at the PR agency Premier. "They wield great power and that can be seductive to some developers. I'd hope that people won't take up any of these offers - their channel risks losing credibility, which in the fickle world of online video is the only thing they have."
"Advertisers want to sleep with you but also want you to remain a virgin":
While the fact that most YouTubers do not call themselves journalists arguably limits or reduces the harm of their unmarked paid-for coverage to consumers, they are also afforded fewer protections than traditional journalists. One young YouTuber who asked to remain anonymous said that he has seen colleagues who became popular for their coverage of EA's Battlefield series "dropped" by the publisher after they attended Activision's rival Call of Duty events.
There is an expectation of loyalty to one publisher's products, especially if those products were partly responsible for someone's initial success. If that loyalty is broken, there are consequences. As David Hepworth recently wrote in The Guardian on the dangers of advertorial: "Advertisers want to sleep with you but also want you to remain a virgin. They want to believe the favours they were granted are not being extended to the next hobbledehoy who comes along."
"The most popular YouTube stars do not have to engage in advertorial", the rise of ad block:
The most popular YouTube stars do not have to engage in advertorial. According to Business Insider, PewDiePie earns between $140,000 and $1.4 million per month from pre-roll advertisements alone. Bain's channel is also popular enough to earn a living this way. He does, however, accept sponsorship deals, but insists that he is always careful to make the nature of the coverage clear to his viewers. "I have built my reputation on honesty," he says. "To fail to disclose sponsored content would be the most grossly disingenuous thing I could do." More pointedly, perhaps, Bain believes that a failure to disclose such a deal might irrevocably damage his career. "I view my business in the long term," he says. "I've been doing this for four years and I intend to do it for 40 years to come. I have to protect my reputation."
Bain, with his army of subscribers, is perhaps less susceptible to corruption than lesser known YouTubers who hope to earn a living from their work. He believes that the rise of undisclosed advertorial deals is due to systemic issues. "This is a market in which ad-blocking software is on the rise," he says. He also points out that if a YouTuber agrees to advertise a product in pre-roll that is unavailable in some countries, then no ad will show to those viewers. "That's a significant part of what has caused the rise of 'influencer' videos," he says. "For most YouTubers, ad-based rates weren't sufficient."
For Byron, the risk is that a failure to disclose deals is not only illegal, it also risks eroding trust between viewers and YouTubers. "I've long thought that the relationship between a YouTuber and their audience is one of the most honest," he says. "But it feels like that honesty is endangered. At best, commercial deals are often only slyly acknowledged. Watch out for phrasing such as 'Publisher X asked us to get involved with...' That's usually a sign that money has changed hands. It should be made much clearer."
"Ignorance more than malice":
I hope with Totalbiscuit's statements that more Youtubers are forthcoming about being transparent and not have Youtube be the shady place with no standards, because more people seem to be using that space to getting their reviews and pre-release opinions on games away from the regular source of critics.Mike Channell, one of the presenters of Outside Xbox (a YouTube channel that, it should be noted, is part of Eurogamer's parent Gamer Network) believes that many YouTubers have been oblivious to the implications of their decision to run unmarked paid-for content. "In most cases I believe that it's ignorance more than malice that leads to these situations," he says. "Most of these guys don't have any experience or guidance with matters of ethics. They feel inside that they're not being corrupted based on their own moral compass, but what they perhaps haven't recognised is that perception and audience faith is just as important as personal justification. I'm absolutely convinced most of them care far more about their audience than a bit of extra cash on the side."
British YouTubers are also regulated by the Advertising Standards Authority. The ASA would generally only seek to regulate an endorsement of a product on YouTube if the Youtuber was 'paid' to say something positive, says Bond. Payment includes cash and payment in kind, such as free gifts. It is, however, simple for a YouTuber to abide by the law. Signpost paid-for content as being an 'ad', 'advertorial' or 'sponsored content' for a simple, hassle free way to make it immediately clear to viewers, says Bond.
The repercussions for a YouTuber whose audience finds out from somewhere else that there may have been an advertorial aspect to the coverage can be severe. Jack Frags published a 30-minute explanation to his audience defending his engagement in EA's Ronku programme earlier this year. It's a spirited defence in which he argues that he didn't say anything that he wouldn't have had he not been engaged in the influencer programme. But as many in the games media know only too well, appearances are often as important as fact to a consumer audience who put their faith in your impartiality.
There have been times when the disclosure of sponsorship deals has backfired. During Microsoft's Summer of Arcade campaign in 2013, the company offered sponsorship to some prominent YouTubers in exchange for coverage of the games that were released as part of the programme. One YouTuber, VideogameDunkey, created a video in which he criticised one of the games, Brothers: A Tale of Two Sons. When Microsoft requested that he retract the video, he disclosed the deal to his audience, for which he stated that he was paid $750. The systemic failure to disclose the deals sooner hurt the game itself. "Those of us who covered the game later on, when it was released on PC, were accused of corruption," says Bain. "The public perception was that anyone who said anything positive about the game was paid off."
Nevertheless, for Bain, there is a distinction between journalistic corruption and the failure of some YouTubers to disclose advertorial content, even if they are part of the same continuum. "YouTube is far more vulnerable to brown envelope stuff than traditional press," he says. "But I believe there's less harm is done in those cases where money changes hands, simply because the majority of these channels don't label themselves as journalists or critics," he says. "There is no pretence of authority or independence."