YouTubers have to declare ads. Why doesn't anyone else?

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I guess this is a sequel to his previous long video about legal stuff associated with online content, "YouTube's Copyright System Isn't Broken. The World's Is.".

👍︎︎ 4217 👤︎︎ u/JorWat 📅︎︎ Feb 15 2021 🗫︎ replies

Tom clearly made this video to hide the fact that he's bought and paid for by big red shirt.

👍︎︎ 4352 👤︎︎ u/bionicjoey 📅︎︎ Feb 15 2021 🗫︎ replies

Watching Tom Scott rip a fat vape cloud was not something that I ever expected to see.

👍︎︎ 2443 👤︎︎ u/TheyMightBePilgrims 📅︎︎ Feb 15 2021 🗫︎ replies

"Everyone draws the line just below what they're doing.."

I felt that.

👍︎︎ 793 👤︎︎ u/Pay-Me-No-Mind 📅︎︎ Feb 15 2021 🗫︎ replies

As for journalists being loaned cars for review

I wonder if there's an automotive version of Michelin restaurant reviews (...would be rather ironic if there wasn't) where the critics are anonymous and just rent cars to review under the guise of being normal customers

👍︎︎ 55 👤︎︎ u/AdvocateSaint 📅︎︎ Feb 15 2021 🗫︎ replies

I don’t ever want to see this rule relaxed, though the double standard exists. Everyone should have to publish a list of all sponsorships.

The machinima respawn controversy was some morally repugnant shit.

👍︎︎ 1229 👤︎︎ u/mattress757 📅︎︎ Feb 15 2021 🗫︎ replies

Tom's long form video's are excellent, he makes boring topics so intersting.

👍︎︎ 196 👤︎︎ u/anandgoyal 📅︎︎ Feb 15 2021 🗫︎ replies

He has a point though. Why can't US and UK regulatory bodies figure that out, but Germany can? Here, every TV show produced in Germany that features some kind of endorsement, and even if it just that you can win this or that car, has to have a visible disclaimer for at least 10 seconds (I think, but I might be wrong here) after every ad break.

👍︎︎ 164 👤︎︎ u/Iceblood 📅︎︎ Feb 15 2021 🗫︎ replies

I watch a lot of podcasts and youtubers that try to incorporate their comedy or whatever into the ad reads. It’s pretty clearly playing into the idea that they really do like the product or they aren’t being told as much what to say. Also it gets people to not skip through them if they can. It’s a little odd but it does work on me since I often watch them to see what fun thing they will do.

👍︎︎ 289 👤︎︎ u/Beor_The_Old 📅︎︎ Feb 15 2021 🗫︎ replies

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Around the world, there are regulations for "influencers", for people with a large audience on platforms like YouTube, or Instagram, or TikTok. Those regulations make sure that if someone is paid to endorse a product, they have to declare that payment to the people watching. But... why does no-one on TV, or film, or anywhere else have to do that? What's up world? It's your boy, TomReacts. And today's lazy reaction video is sponsored by Disguised Gambling Game. Level up in an endless series of battles designed to create an addiction loop! Then when the dopamine hits go away, bring them back by paying money for loot crates! They look and feel like a random slot machine, but in reality, they're rigged so you win just enough to keep you feeding more and more money desperately into the game until it drains all your bank accounts and credit cards. It won't work on everyone, but it'll work on a few people, and that's how they make a profit. It's like a casino, but without any regulation, and children can play too! I am morally complicit in this! What counts as advertising? That's not a rhetorical question, it is genuinely up for debate. Take this song from nearly a century ago: ♪ Does the Spearmint lose its flavour on the bedpost overnight? ♪ In the late 1950s, British singer-songwriter Lonnie Donegan wanted to adapt that into a more modern style — at least, modern for the 1950s. His cover became the definitive version of the song. It reached number 5 on the US Billboard chart, number 3 on the UK charts. But the title and the chorus aren't quite the same. ♪ Does your chewing gum lose its flavour on the bedpost overnight? ♪ Chewing gum, not Spearmint, because Spearmint is a trademark, and in 1959, that might have counted as advertising here in the UK, and the BBC wouldn't play it. The evidence for that's a little shaky, Donegan also changed a lot of the other lyrics, but in the same way, in 1970, the song Lola, by the Kinks, was banned by the BBC, because it mentioned a trademark. ♪ And it tastes just like Coca-Cola ♪ A ban like that could be devastating to a song's chance of success, because back then, the BBC had a monopoly on radio broadcasting. Yes, there were pirate stations, and others broadcasting from international waters, but in 1970, the UK itself had no legal radio stations other than the BBC. If you wanted your song to reach the charts, you wanted BBC airplay. So lead singer of the Kinks, Ray Davies, had to fly back from America to the UK, where the album's master recordings were, re-record those lyrics for a radio edit... ♪ And it tastes just like cherry cola ♪ ...and then fly straight back to the US on the same day, so he didn't interrupt the band's American tour. It's a pretty seamless edit, the vocal quality's a little different, but chances are no-one would spot it. Back in the 1970s, you could not mention trademarks or company names in songs if you wanted airplay over here. The BBC was funded through an annual tax on owning a radio or television, they were not allowed commercials, and the logic was that maybe someone might have been paid for that reference to Spearmint or Coca-Cola, and thus would have managed to sneak advertising onto the BBC. These days, they've relaxed their rules. Partly because deals like that rarely happen for song lyrics. There are exceptions, like pop star Pitbull, who did adverts for a camera company and then gave them a shoutout: ♪ Yeah right, picture that with a Kodak / Take a picture of me with a Kodak ♪ Strong move there to rhyme the brand name with itself. Or maybe a pop star part-owns an alcohol company, and then puts that company into their lyrics. Like Pitbull. But leaving those rare cases aside, a product reference in the lyrics of a pop song is usually just that: a reference. People have written hit songs entirely about products and brands. ♪ Gucci gang, Gucci gang, Gucci gang ♪ ♪ It's fun to stay at the Y-M-C-A ♪ But the companies didn't pay for those references, and the companies definitely didn't have control over those references, so I think pretty much everyone would agree: not advertising. Those two factors, payment and control, are what define advertising. Now, the lines aren't always clear. It's standard practice in car journalism for reviewers to be given cars to test drive for free. It's unreasonable for a journalist to buy a brand-new car for each review, so often, manufacturers will lend them one for a few days, on the expectation that they'll get a review out of it. It's a perk of the job. Is that payment? If that journalist writes too many bad reviews about a particular car company, or they've got a reputation for being really honest or tough, maybe they won't be quite as high on the list for free test drives next time. Is that control? Does that count as an advert? What about, if instead of just being delivered the car, the journalist — or the influencer — is flown off first-class to some tropical location, all-expenses paid, and spends half a day driving the car and another couple of days on a beach somewhere? The slang for that is a "junket", and it is a surprisingly common occurrence in quite a few industries. Can a journalist be trusted to give an unbiased review after that? Would that be an advert? Incidentally, this is why when I get invited to try a jetpack, or a wingsuit tunnel, or something like that, I almost always start the video with the phrase... "I got an email..." And I make clear what's happened. Or at least, I think I do. I paid my own way there, didn't take any money from them, didn't run the video past them afterwards, they had no control over what I said. If I'd been injured, I'd have shown it. In the past, I have made public-relations people angry because I didn't tell the story they wanted. Do videos like that count as adverts? I don't think so, the regulators don't think so. but that wingsuit tunnel did give me a day's training for free. Everyone draws the line of what's "acceptable" just beneath what they're doing themselves. That's why I'm mocking sponsorships from gambling companies, but... I'm not mocking the basic idea of YouTube creators doing sponsorship reads. 'Cause I've done those! And everyone draws the line just below what they're doing. Payment and control. Those are the factors that make something into an advert. And around the world, the regulators are clear: if you're an influencer on YouTube, or Instagram, or TikTok, or anywhere online, and what you're producing has payment or control by someone else, you have to declare that. Hey guys, just want to tell you about these new Auntie Maggie detox teas. They're guaranteed never to fail. They cure lumbago, rheumatics, gout. And I'll be drinking these for the next six months because... because the money from that reality show I did is really starting to run out. If anyone knows any casting producers please DM me. I think the gold standard of influencers declaring how they've been influenced would be Nikkie de Jager, a Dutch YouTuber who mainly creates makeup tutorials. Okay, maybe not the gold standard, because using white text on a nearly-white background is ridiculous, but if I boost the contrast there a lot... She has specific icons that she uses when she introduces each makeup product. Has she bought it herself? Has she been sent it for free? Because in that case there is payment — getting stuff for free counts — but there's not much control. Or has she been paid to promote it, is it an advert? Or does she get a cut of sales using an affiliate link in the description? And sure enough, every time she starts using a product in a video, one of those little icons pops up to make sure her audience knows about it. If someone's getting paid for endorsing a product, but their audience thinks they're giving an unbiased review, that's... well, maybe "fraud" is too strong a word, but it's what the US Federal Trade Commission, the FTC, would call an "unfair or deceptive act". I'm going to be talking mostly about the US and UK in this video. That's partly because I'm British and I publish on YouTube, an American website, so those are the rules I have to deal with. But it's also partly because they represent two different ends of the scale of what's allowed and what isn't. If you're in another country, your rules will probably sit somewhere between those two extremes. Anyway: recommending a particular product, without disclosing that you've got a financial incentive to do so, is considered lying for commercial gain. And in the US, that's something that the FTC can regulate. They have guidance for "influencers", which says: Make it obvious when you have a personal, family, or employment relationship or a financial relationship – such as the brand paying you or giving you free or discounted products or services. And they really do mean make it obvious. Place it so it's hard to miss. So, don't put it on an "About Me" page, or at the end of the video. Use simple and clear language. Now, in the US, "simple and clear language" can just be you explaining it, and the word "sponsored" is good enough. The British regulators, of which there are three with various different remits, are a bit more strict. If the brand you're working with here has any control over part of what you're posting, even just checking it through and approving it, then that part becomes an advert: "sponsored" is not a good enough word, it has to be "advert" or "ad". And if the whole video is an advert, your audience needs to know it before they click. It's got to be in the title or thumbnail. The one common thread in all these regulations is that every influencer is expected to make it clear when they've been paid to say something, or wear something, or even have something just in frame. Simply posting a picture of a product in social media, or a video of you using it, could convey that you like and approve of the product. If it does, it's an endorsement. You don't necessarily have to use words to convey a positive message. As a side note, that's also in the terms of service for YouTube. If your video has paid promotion, you have to tick a box. That's partly to keep regulators around the world happy. Partly so they can put up a notice to viewers, but it's also so their systems can work out what you're promoting and make sure not to run competing ads against it. They're a private company, so they're allowed to make those rules however they want, but that's separate to what governments require. And governments require that influencers have to declare when they've been sponsored. But that's a standard that doesn't seem to apply to anyone else. This is gonna be a really difficult video to make. There are a lot of people I need to apologise to. But before that, I need to tell you about these new wireless earbuds. They sound like absolute garbage. They don't fit in my ears properly. And in two days' time, I will slip up and post a photo on Instagram of me in the gym with my usual Apple AirPods in, but until then, I have been paid to tell you that these are really, really good! In American television shows, characters will sometimes endorse a product for no reason related to the plot. Classy, I don't think anyone noticed(!) But often, it is more subtle than that. MTV's The Hills: New Beginnings is a constructed-reality show, it's a soap opera where the characters are also real people, where the boundary between genuine drama and producer-written storylines is deliberately blurred. And it's got product placement. ♪♪ [instrumental pop music] [music fades] If that was a YouTube influencer putting lingering shots of their make-up sponsor in a video, that would absolutely need to be declared, clearly and up-front, both in the US, and in the UK. Remember the FTC guidelines: you don't have to use words to convey a positive message. Although sometimes, they do anyway, like when they product-placed some milkshakes. Boom, got your shake. Wow! Thanks, honey, my favorite. But that's on TV, so the FTC is fine with it. When they talk about television, they phrase things a little differently: Product placement doesn't require a disclosure. A different US government agency: the Federal Communications Commission, the FCC, does have some requirements for disclosure, but they're minor. The Hills can just put a few words in the credits at the end of the show. And that's all they need to do. That's not clear, and it's not up-front. It's hardly a disclosure at all. What about in music videos? Those are certainly brands associating themselves with someone influential. An Instagram influencer, being paid to post a picture wearing a certain brand of headphones, is required to put a big disclaimer, maybe #ad on it, even if they're not saying anything about whether the product is good. The FTC's rules for influencers make that very clear. But a pop star, who is very, very clearly influencing legions of fans, including a lot of kids, doesn't have to declare anything when they do the same thing in a music video, like DJ Khaled in I'm the One. Or when they're promoting alcohol, like DJ Khaled in I'm the One. Or promoting vaping, like DJ Khaled in I'm the One. There is— There is an argument that the audience understands what's happening there. Yes, there is payment, and there's control, and I reckon there's endorsement, but it's also clear that a product placement is just that. It'd be different if that was a factual TV show about reviewing vape pens. The argument goes that product placement doesn't need to be declared in music videos and other entertainment media because the audience knows what's going on. And that's what the FTC says. If what the host says is obviously an advertisement – a disclosure probably isn't necessary. Because it's not confusing. It's obviously an advert, right? Well, it's time to play: Is This an Advert? First clip is from sitcom 30 Rock. Is this a paid advert? These McFlurrys are amazing. I know! The soft swirl of vanilla, and the hard crunch of candy and cookies. You think they fight each other, but no. That wasn't an advert, according to the writers. McDonald's didn't have a say in that, the writers just thought it was funny. How about this clip? We're not compromising the integrity of the show to sell— Wow, this is Diet Snapple? I know, it tastes just like regular Snapple, doesn't it? I only date guys who drink Snapple. Yes, that was an advert. Product placement, and a testimonial unrelated to the plot. What about the show that inspired 30 Rock, Saturday Night Live? Now, what's this I hear about an Angry Whopper? It's like a Whopper, but it's spicy. It's got onion rings in it. In it? [audience laughter] So it's an entree that ate its own side dish? That was product placement. Saturday Night Live have been doing sponsored sketches for years now, and there's stories of them checking jokes to make sure they don't offend their sponsors. I only use Farrow & Ball. Farrow & Ball? I don't know that. Oh, well you should. It's the high-end British paint company that offers unparalleled depth and col-oor. That sketch wasn't sponsored. It was a complete surprise to everyone at the paint company. The writers just thought it was funny. To the audience, there is no difference between a gag that's been written specifically for a company and approved by that company, where there is payment, control, and endorsement — and a gag where the writers just put a company name in as a joke. It is impossible to tell without researching. But none of those shows have to add any sort of disclaimer until the very end credits — if there's even one at all. How about in cinema? Well, James Bond movies are notorious for their product placement. There's this scene from Casino Royale. Or this scene from Casino Royale. Or this scene from Casino Royale. Those are adverts. The film has been altered in exchange for... Well, sometimes for money. Sometimes for cross-promotion. And occasionally they might be in exchange for the boss getting a cameo in the film, like Richard Branson appearing in this scene from Casino Royale. And yes, James Bond movies are famous for this, but it happens in a massive amount of films. Like that time Superman got paid $40,000 for shilling cigarettes, and perhaps even more for sugar-filled drinks. Strong choices for an all-ages movie there. But there's no "contains paid promotion" on any of those movie posters, no title card letting the audience know about it up front, like influencers have to do. Product placement in film was so normalised as to be a joke in itself nearly 30 years ago. Contract or no, I will not bow to any sponsor. Sure, Casino Royale may put some names at the end of the credits — — but even if anyone was still watching then, it's impossible to look at those credits and tell how much payment or control there was, if any. The only reason I can be sure about it is because of all the news articles that cover it. The actual agreements are private between the filmmaker, the companies, and their accountants. Regulators all around the world, they're all fine with that. Product placement, you could say, is not a lie. It's not deceptive or fraudulent. even with a full-on endorsement, it's just a brand name appearing in entertainment. Sure, it is an advert, but maybe there's a difference because influencers are more trusted. There can be this awful parasocial relationship online where viewers think they're the performer's friend. So when an influencer endorses a product, it sounds like a personal recommendation, and therefore: that's a fraudulent claim. But a character on a TV show? Not the same, goes the argument. No-one's going to be confused there. I don't think it's so clear-cut. First, you've got those reality TV stars on The Hills. They are absolutely "influencers", no matter where they appear — but the rules only apply to their social media. And I'd argue that a character in a James Bond movie saying that a watch is... beautiful... ...is still an endorsement. That character is portrayed as someone who should be trusted about things like that. If characters expressing opinions didn't influence people, companies wouldn't pay for the placement. And after all... I'm a character. This persona is fictional. Self-aware, sure, and based on the real version, but fictional. Tom Scott, the actual person, is not like this off camera. Could someone get around the influencer regulations by arguing that if they or their company takes money to provide an endorsement, it doesn't need to be declared because on-screen, they are playing an exaggerated character who happens to have the same name? That sounds ridiculous, but British TV presenter Lorraine Kelly once won a court case over a million-pound tax bill that way. Her lawyers successfully argued that she wasn't being hired to present TV shows as herself, but as a performer portraying a character with the same name, and thus the contracts fell under a different set of tax rules. Yes, there is an obvious, clear difference between: "putting a brand logo in the background of a TV show" and "this fake-friend has said that a thing is good, and you should buy it". If it was just those two clear, distinct examples, I think I'd agree with the way things are right now. But it's not that clear. There are a lot of edge cases. And the rules differ massively based on the medium. If you thought you were watching an entertainment show, and it was actually advertising... Is that fraudulent? Is that deceptive? And even if it isn't, is that something worth keeping in check for the good of society? The American government says no. I'll talk more about that shortly. But the UK, and most Western European governments, say yes. Television shows imported here over the Atlantic sometimes need to have product placements edited or blurred out, because our rules are much more strict. Except, I'm not sure those rules are always being followed quite as much as they should be. There is one more example I need to talk about. Hey, folks! We're having a great time here at Asbestos Land. I've left the wife and kids to go on the boat ride through Dusty Town, [wheezing] I'm off to the live mining demonstration. It's a brilliant theme park. It is [cough] 100% safe. Kids, go steal your parents' credit cards. Buy some tickets. Thank you very much [coughs intensify] to Asbestos Land for inviting... Disney's theme parks have an "influencer program". If you post about Disney World a lot, they might give you free passes and invitations to special media events. They even have an annual Moms Conference for their top influencers. All that sponsorship has to be declared, of course. Particularly under the UK's strict rules. There's absolutely no way that any influencer could take large amounts of free stuff and get special access like that and not declare it very, very clearly. Right? ♪ Saturday! ♪ Ant and Dec's Saturday Night Takeaway is the last of the great British variety shows. It's been running on and off for nearly twenty years, but it's part of a UK broadcasting tradition that goes back to the 1950s. Stunts, skits, competitions, musical performances, all in a shiny-floor studio, broadcast live. It regularly attracts six or seven million viewers, including a lot of families: that's about one in ten of the British population. The hosts, Ant and Dec, are so well-liked that they've jointly won the British National Television Award for best entertainment presenter nineteen years in a row. In the first episode of the show's 2020 run, they announced that the season finale would be broadcast live from Disney World. It wasn't, in the end, obviously, the whole pandemic thing, but they were planning to broadcast live from Disney World. Actually, they were sure to say the exact official name, it'd be broadcast from... Walt Disney World Resort in Florida! [audience cheers] It's not the first time they've done that. Their 2017 season finale was also from Disney World, and that time, Disney provided a huge stage in the middle of the Town Square of Main Street USA. That stage construction obstructed the famous view of Cinderella Castle, while the park was open, for days. That is such a rare event that I can't actually find any other example of when that's happened. The production may not have been given actual, cash-money profit from Disney or their other sponsor, Virgin Holidays, but clearly they got a huge amount of free stuff and production support. they had hundreds of vacation packages to give away as competition prizes, so they're clearly getting some form of payment from their sponsors, and a lot of it. This is the biggest ever giveaway on British television. You heard me, madam, the biggest ever giveaway on British television. Now, the UK regulations on product placement are much, much more strict than the US. There's no product placement in news or children's programming allowed at all. And on shows made in the UK, you can't product-place alcohol or unhealthy food. And there are also rules about the way you can place products. The content of programmes shouldn't seem to be created or distorted, just to feature the placed products. So you can't create an entire show just to sell Disney World tickets. Okay, so let's give them the benefit of the doubt, maybe the producers were looking for somewhere spectacular for the season finale, and Disney stepped up. Programmes also can't promote placed products or give them too much prominence. There shouldn't be any claims made about how good a placed product is. So on British television, you're not allowed to make product placement unduly prominent, and you can't endorse the product. That's an endorsement in the first minute of the show. And I think the product placement is quite prominent when they have a segment where they show off the presenters having fun on the rides, and another segment where their two junior presenters, Little Ant and Dec, show off different rides. Disney even put on a special parade just for the show. That sounds like a lot of very promotional references to me. It also sounds significantly off-beat, but that's live broadcasting for you. ♪♪ ["Supercalifragilisticexpialidocious" sung increasingly out-of-sync] Those are trusted presenters, having a great time at Disney World, endorsing the theme parks to the families watching, including a lot of kids. But they're on television. so despite the UK's strict rules, they didn't have to give a heads-up at the start, or label the whole show #ad, or make it clear that all this was advertising. Many years ago, I made a video about the UK's product placement rules, and I said back then how strict those rules were. And yes, they are a bit more strict than the US, but clearly not as much as I thought. The show did have to do one thing, under the UK rules. In the first few seconds, they did declare their product placement here. You can see it in that first 2020 episode. It's the little P logo that was in the corner of the screen for just a few seconds. That's the UK's official product placement declaration for TV. That's all they needed to do. Even under the supposedly strict British rules... they just put that logo on, and all that was fine. I don't think that counts as a declaration. How many kids told their parents they wanted to go to Disney World after seeing that show? How many big, expensive Virgin Holidays vacation packages were sold to the millions of viewers who didn't win the competitions? How much did that 2017 show "influence" the audience at home? Well, we can answer that at least vaguely: It must have had quite a bit of influence, because three years later, Disney said: "That was worth it, let's do it again." But you could argue: well, it's clear how this works. obviously it's a—a collaboration with Disney. The audience understands it. But... that's before you start talking about all the other products mentioned in an average show. From the first episode of their 2020 run: VARIOUS: Bellway. Bad Axe. ...and his own restaurant. Hyundai. Motorpoint. On the Beach. Villa Plus. Sofology. TalkTalk. Sonic the Hedgehog movie. Google. Furniture Village. Confused.com. Specsavers. Pukka Pies. Deliveroo vouchers for you, and for the first time ever, our studio audience! How many of those companies paid? How many of them had control? I don't know. They don't need to say. To be clear, I'm not saying the show broke any regulations. They weren't investigated, and I can't find any serious complaints about any of the episodes, other than one article on a tabloid web site that aggregated a few forum posts. If Ant and Dec were online influencers rather than television personalities, that whole Disney World show would have needed a clear advertising disclosure, possibly even a #ad in the title of the video or in the thumbnail, because Disney must have approved and checked through what was going on. I don't think Disney would have provided cast members to perform classic songs with rewritten lyrics, without having a sign-off on what they were singing. ♪♪ [in the tune of "Be Our Guest"] So we've got payment, and control, and endorsement. But they're on TV. So one barely-visible letter P is enough. Around the world, the regulations are more strict for online influencers than they are for any other medium. And normally, around this point in a video like this, I would switch from "fact" to "opinion", and talk about how we could fix this, how we could make it consistent, and what we need to do. And yeah, I am now going to switch partly from fact to opinion. But actually resolving the question, talking about why it's this way, and how to fix it, is a bit difficult. And to explain that, I have to talk about America. Hi kids! Today we're looking at 301 amazing things about some '90s cartoon series. You won't remember it afterwards, and an hour of your life will have been completely wasted! But before that, here's how I keep my family safe: with The Ring Doorbell. Not Ring doorbell, The Ring Doorbell. If someone tries to steal a package from your porch, it'll play them a tape that says they'll die in seven days. Then a creepy ghost girl will burst out of the doorbell and chase them away. The Ring Doorbell is available from that weird shop that you're certain wasn't there last time you walked through the neighbourhood. Also it sends a constant live feed to the local police department. The US Federal Communications Commission, who regulate over-the-air broadcasts — among other things — says that: Expressions of views that do not involve a "clear and present danger of serious, substantive evil" come under the protection of the Constitution. Freedom of speech is a very, very sensitive subject for a lot of Americans. Because the right to freedom of speech is part of the First Amendment, part of their Constitution, which often feels like it's taken as a religious text. Congress shall make no law... abridging the freedom of speech... America has "the land of the free" in their national anthem, and that includes the freedom to say whatever you want, and spend as much money saying it as you want. But despite the reputation, America does not have complete freedom of speech. There are a lot of limits to it. Here's a list of just some of the things that you cannot do in America, despite the fact that these are technically limits on freedom of speech. Yes, there is "serious evil" in that list. But I'm not convinced that someone dropping an F-bomb on Good Morning America meets that threshold. So sure, in the US you cannot lie in order to sell a product. That falls under "commercial speech", which the courts say doesn't have quite the same protections under the First Amendment. If you are endorsing something as an "influencer" and not telling the audience that you've taken money to do it... It is lying to sell something. That should be regulated. That is a restriction on freedom of speech, but it seems acceptable to pretty much everyone. But because product placement is not a clear and present danger of serious, substantive evil, and not fraudulent, in the US it's allowed by default. The First Amendment sets a really high bar for government regulation of speech, and something just being "confusing" doesn't clear it. I don't believe that the US regulators would ever ask TV or film productions to declare their product placement clearly and up-front. And even if they did, I'm pretty sure the courts would strike it down as Unconstitutional the first time one of the broadcasters challenged it. I think the only reason those regulations still apply to online influencers... might be because no individual has the time or money to file a lawsuit challenging them. If the US regulators wanted to be consistent with the Constitution, and consistent across all media... they'd have to massively loosen the restrictions on influencers, to the point where in many cases, no declarations would be needed at all. Or maybe you'd just have to put a tiny mention of the sponsorship at the end of the video where no-one would notice, or down at the bottom of the description. I think that's a terrible idea. I don't think it'd make the world a better place. Although it's worth noting that on YouTube, the platform's regulations would still apply: they're a private company, so they can require whatever declarations they want. And I think they should. But that wouldn't affect Instagram, or TikTok, or Twitter, or anywhere else. Short of tearing down the Constitution and starting over again... Congress shall make no law... abridging the freedom of speech... ...except for that of corporations. [air horns] But, on this side of the Atlantic, the default starting point is that free speech should ideally happen on a level playing field. Lawmakers and regulators understand that money can distort public opinion in terrible ways. Britain puts strict financial limits on political campaigns, and bans political ads from television entirely. Those bans have been challenged in court, and the challenge failed. The restrictions stand. Yes, they're a limitation on freedom of speech, but the British courts — and European courts — say that letting the people with money and power say the most isn't necessarily protecting everyone's free speech — it might be doing the opposite. The ideal over here, according to the regulators, is meant to be: for-the-good-of-all. Sneaky advertising like product placement might not be fair or good for society. And over here, it's generally seen as okay to regulate things like that for the benefit of everyone. You should have the right to know when you're being advertised to. Otherwise, you risk very rich people and companies being able to quietly influence the world in their favour, even more than they already do. Those are all obviously massive simplifications. Legal scholars will no doubt be angry at me, and anyone who has strong views either way will be certain that the other side is wrong. But in the UK, if it's not very, very obvious that something is an advert, it must be clearly marked. The rules here used to be that you absolutely could not mix advertising and content. That's not the case anymore, but now at least, if people could be confused whether something's an advert, you have to make it clear. If a British YouTube video has product placement, even just something sitting in the background of the shot, the government requires the creator to disclose it, clearly and up front. If the UK regulators wanted to make those rules consistent across all media... then they'd have to require that product placement in movies and television also had a clear advertising disclaimer at the start. Which seems ridiculous, right? As I wrote those words into this script, it felt ridiculous to me. And then I thought about it a bit, and I realised that actually... I don't think I have a problem with that. We already have a ratings system for movies here. If you watch a film in a British cinema, the distributor is already required to add what's called a "black card" for five seconds just before it starts, showing the age rating and the ID number of the film given by the ratings board. We've got precedent for this. If the regulators wanted to make advertising disclosures consistent across all media, if they thought that the public should know when they're being advertised to, as is apparently their goal for influencers... then they should also require a slate that says: "This film contains advertising from these companies." And on television, you could change that tiny, invisible capital-P logo to be a disclaimer that can actually be understood. Germany's already there: they don't need the show to name advertisers, but they do have to make it very, very clear. So I'm not asking for the regulations on influencers to be loosened, because I don't think they should be. I think it is misleading if you think you're watching an entertainment show, but you're actually watching an advert. I think you should have the right to know when you're being advertised to, and that being clear about who's paying for you to hear things helps democracy and society to work. I absolutely agree that anyone making stuff for the internet, myself included, should have to declare when we've taken payment to say something. I just want the folks who publish offline to play by the same rules. ♪♪ [orchestral version of Does The Spearmint Lose Its Flavor] [Caption+ by JS* https://caption.plus] [coughs profusely] Oh, that is awful. Don't vape, kids. ♪♪ [music ends]

Info

Channel: Tom Scott

Views: 3,622,465

Rating: 4.9628491 out of 5

Keywords: tom scott, tomscott, advertising, product placement, influencer regulations, influencer law, communications act 2003, fcc, ftc, federal trade commission, federal communications commision, ofcom, competition and markets authority, advertising standard authority

Id: L-x8DYTOv7w

Channel Id: undefined

Length: 31min 48sec (1908 seconds)

Published: Mon Feb 15 2021