So we're gonna have one of these a week now?
This is simultaneously depressing and encouraging. I hate the fact that this exists, and is even seen as normal by some people, but only good can come out of it being exposed like this. For as much as we say people on the internet don't matter (and they don't, and this will probably continue), the only way to keep a check on these kinds of things is to maintain constant vigilance. If that means we're gonna have to have a shitstorm every week about the next publisher doing this (I don't even want to imagine the threads if Nintendo or Sony somehow get linked to one of these), then so be it.
As for the legality of the matter: the Polygon article left me very confused at first; at first it seems to state point blank that these acts are not illegal, since the guidelines themselves are not legally enforceable. But later on, it also says:
This is an absurd statement. If these guidelines are meant to boil down U.S. Law in a way a layman can understand it, the law itself must make some mention of disclosure in advertisements. Further research on my part yielded me this:
The FTC wouldn't draft an interpretation of a law where it adds new regulation. Seeing as Polygon made no attempt at getting to the root of the issue (In hindsight, it seems to me as if this article did nothing but muddy the waters of the discussion, as did the comments but the FTC spokeswoman, which at this point seem like mere semantical argument.), I took it upon myself to peruse through the
FTC Act, the piece of federal legislation that covers advertising. At first run through my search gave me nothing, and honestly after being in the middle of the discussion for almost 3 days by that point (and being quite tired of reading legalese) I left it aside. But this thread and some of the responses piqued my interest one more time and I went back into the law. Its quite funny now that I missed it, as it heads a section:
Seeing as these guides expound on the principles dictated in the law, and therefore must draw from it, it is my reading that this is the section the guides base themselves on to require advertisers to disclose monetary arrangements. It is my view that it falls directly under the '
deceptive acts' listed above. Furthermore, it is in this same section that we find mention of the $10,000 per infraction that was listed in the original Ars Technica article.
Due to this, It seems quite clear to me that failure to disclose of contractual endorsement not only violates FTC Guidelines, by extension it also directly violates the FTC Act. Polygon's article claiming that the guidelines themselves are not legally enforceable is correct only in strict sense of that sentence: the guidelines themselves are not enforceable, but the material they are based on is. Pure semantics.
Now, I don't presume my reading of the situation is the correct one. While I am a Lawyer, I am neither trained in Common Law nor much less U.S. Law (though I have lived here for the majority of my life, and as such have a certain affinity and understanding of it.) I welcome anyone with better credentials (or anyone that can read, as a Law Degree is not required to do research) to revise my findings. However, I believe this is the same interpretation that the FTC gives to the law (as evidence by their creation of the guidelines).
Link to the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, which specifically "address the application of Section 5 of the FTC Act (15 U.S.C. 45) to the use of endorsements and testimonials in advertising."
Link to the FTC Act
Link to Section 5 of the FTC Act - Unfair Methods Of Competition Unlawful
Link to FTC Policy Statement on Unfairness
TL;DR - It's illegal as fuck.
