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Apr 17, 2018

PS3 controller

#ShareACoke. #LikeAGirl. #ShareYourEars. These are just a few of the hashtag marketing campaigns that have become a staple for brands everywhere. Of course, the hashtag campaigns are part of larger advertising schemes, like Sony's ad campaign in late 2011 for the PS Vita.

This ad campaign was the source of major headaches (and FTC actions) for both Sony and their ad agency, Deutsch LA. So, what exactly did they do so wrong that the FTC got involved? Both Sony and Deutsch made some misrepresentations during the ad campaign that misled consumers about the product.

Sony claimed that "with remote play," PS Vita users could "easily access their PS3 games on the PS Vita" and "pause any PS3 game they are playing on their PS3 consoles at any point in the game, and continue to play that game where they left off on the PS Vita." However, they conveniently left out the fact that this capability was only possible for a limited number of games, and that out of those games, some made the gamers buy two versions (one for each console).

Deutsch LA, on the other hand, sent out a companywide e-mail asking everyone "to Tweet about the PlayStation Vita using the #GAMECHANGER hashtag" to "get the conversation started." Some of the tweets include: "One thing can be said about PlayStation Vita…it's a #gamechanger" and "This is sick…See the new PS Vita in action. The gaming #GameChanger." So some people tweeted - big deal, right? Actually, yes. These tweets came from employees (aka they were getting paid to tweet), but they made it sound like they were just regular consumers.

Basically, what the FTC is worried about, and what Sony and Deutsch got in trouble for, is brands misleading consumers by not giving them the full picture. So, to combat this and to make sure consumers are getting good information, they started to create rules for advertising and influencer campaigns like this one. Later cases add a more complete set of rules, but in this case, the FTC started with the basics:

  • Don't make misrepresentations about any feature or capability of your product
  • Don't say your product can do something unless it actually can
  • Don't make misrepresentations that someone endorsing your product is an independent user or ordinary consumer if they're not
  • Don't make representations about someone endorsing your product unless you clearly and prominently let consumers know that you have a material connection to them
  • Do take reasonable steps to take down endorsements that violate the rules

"Is that it?" you ask, "that's all I have to do to be in the clear with the FTC?" Well, not exactly. This is a good start, but we'll see that the list of rules grows in the next FTC case, Machinima.

Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation, and privacy.

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