MoFo Privacy Minute
In December 2014, we noted that the Federal Trade Commission’s (FTC) settlement with advertising firm Deutsch LA, Inc. was a clear signal to companies that advertise through social media that they need to comply with the disclosure requirements of Section 5 of the FTC Act. On September 2, 2015, the FTC announced a settlement along the same lines with Machinima, Inc., a company promoting the Xbox One system. This new action indicates that the FTC is serious about enforcing compliance in this space, so companies need to make sure that their advertising and marketing partners understand their obligations under Section 5.
A Quick Refresher on Online Advertising Disclosure Requirements
As we explained in our previous alert, the FTC’s Endorsement Guides describe how advertisers using endorsements can avoid liability under Section 5 for unfair or deceptive acts or practices. Simply put, a customer endorsement must be from an actual, bona fide user of the product or service and, if there is any material connection between the endorser and the advertiser that consumers would not reasonably expect but that would affect the weight given to the endorsement—such as payment or an employment relationship—then that connection must be clearly and conspicuously disclosed.
According to the Complaint in In re Machinima, Machinima paid video bloggers (“influencers”) to promote Microsoft’s Xbox One system by producing and uploading to YouTube videos of themselves playing Xbox One games. Machinima did not require any disclosure of the compensation the influencers received, and many videos lacked any such disclosure. The FTC alleged that the payments would not be reasonably expected by YouTube viewers, such that the failure to disclose them was deceptive in violation of Section 5. In light of the Deutsch LA case, which dealt with endorsements on Twitter that did not include proper disclosures, In re Machinima seems uncontroversial. But what makes the case interesting is how close Microsoft came to being swept up in it.
Microsoft Escapes Liability, Narrowly
The FTC also issued a closing letter reflecting that it had investigated Microsoft, and Microsoft’s advertising agency Starcom, in relation to influencers’ videos. (Starcom managed the relationship with Machinima.) Even though the FTC did not ultimately take action against Microsoft (or Starcom), the closing letter is significant because it makes clear the FTC’s position that a company whose products are promoted bears responsibility for the actions of its ad agencies—as well as the actions of those engaged by its ad agencies.
According to the closing letter, Microsoft avoided an enforcement action because it had a “robust” compliance program in place that included specific guidance relating to the FTC’s Endorsement Guides and because Microsoft made training relating to the Endorsement Guides available to employees, vendors and personnel at Starcom. Furthermore, Microsoft and Starcom adopted additional safeguards regarding sponsored endorsements and took swift action to require Machinima to insert disclosures into the offending videos.
Given the increased reliance of advertisers on social media campaigns, the Machinima case provides both a clear warning and clear guidance to companies on how to minimize the risk of a Section 5 enforcement action. Not only must notice be provided of any paid endorsements, regardless of the medium in which they appear, but advertisers should also seriously consider having in place specific policies and procedures to address the FTC’s Endorsement Guides—as well as to ensure that their ad agencies and other involved parties comply with them.