Opinion Analysis by Albert Geokgeuzian, Staff Writer

October 25th, 2020

Burger King recently ran a marketing campaign, dubbed “The King Of Stream”, that drew the ire of content creators and fans alike. They abused a Twitch[1] program known as Text-To-Speech to broadcast their menu offers[2]. At first glance, it may not seem to be a big deal but what if I told you it could be a Federal Trade Commission (FTC) violation and be considered illegal? 

 

The Federal Trade Commission is an independent agency of the United States whose “unique goal is to protect consumers and promote competition”. Over the years the FTC has come down harder than ever before on tech giants; you may remember the $170 million fine[3] that YouTube was forced to pay for alleged violations of children’s privacy laws being a recent example.

Even though the FTC has started going after the heavy hitters of online advertisement with greater potency, they are still unsatisfied with how they are handling social media influencer marketing. On Nov 5, 2019, the FTC published “Disclosures 101 for Social Media Influencers” that is a set of guidelines for influencers that highlights how they should disclose sponsorships or ads. In February 12 of this year, the FTC released a statement that read  “the FTC will need to determine whether to create new requirements for social media platforms and advertisers and whether to activate civil penalty liability.[4]” This admittance that the guidelines are not enough is because they are there to help influencers, but those aren’t rules and thus can’t be enforced, and, more importantly, punished as harshly as the FTC wants to.

 

The King of Stream marketing campaign is extremely concerning for the FTC. 

 

Twitch is a platform where everyone with an internet connection can broadcast content on. It is built around the idea of community engagement. When a content creator streams on twitch, they can read messages that are sent in by the live viewers, accept donations, and more. 

 

One such community engagement tool is the Text-To-Speech program that the vast majority of streamers use; it allows for viewers to write messages with the donations that they send in which is then read out loud for the streamer and the viewers to hear live on stream.

The first obvious problem with giving the internet access to a tool that can be abused by trolls but that problem is mostly solved by having a profanity filter, just as how the most popular program that offers TTS does.[5]

What did Burger King really do?

 

Burger King showed possible a different kind of abuse, an abuse that is more dangerous, predatory advertisement. 

Even streamers that were unintentionally involved in the King of Stream campaign expressed concerns that they would now face trouble with the FTC, because as one streamer put it “it [the donation] puts us in a position where we are airing undisclosed ads”. In the same February 12 statement that the FTC released, they stated that they should focus “on Advertisers, not Small Influencers”. So, this means that the FTC is in prime position to attack Burger King, right? No.

 

The King of Stream campaign by Burger King does not fall under “endorsement” by the streamer; and the FTC emphasizes the word “endorse” for when influencers must disclose their involvement. 

The FTC defines an endorsement as “an endorsement means any advertising message (...) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.”[6]

 

As such a message interrupting a stream by a company donating some money and advertising their products does not fall under “endorsement” because it is not believed that the message reflects the opinion of the streamer.

But that is not where the story ends. 

 

As Matthew Patrick brilliantly explained in this video right here, the King of Stream campaign is similar to an act called “Broadcast signal intrusion” which is handled by the FCC, not the FTC. In the past, the FTC is the agency that has dealt with influencers relationships with sponsors, but in this case the Federal Communications Commission, which regulates interstate and international communications by radio, television, wire, satellite and cable, is the agency that has the laws set in place to challenge the King of Stream campaign.

So, what is Broadcast Signal Intrusion?

 

A broadcast signal intrusion is the hijacking of broadcast signals of radio, television stations, cable television broadcast feeds or satellite signals. Hijacking incidents have involved local TV and radio stations as well as cable and national networks. While they are rare, there have been instances of TV or radio broadcast signals being hijacked using tools meant for other purposes. Radios are relatively easy targets for acts like this because all you really need is an FM transmitter that can overpower the initial broadcast. 

 

There have also been instances of a TV broadcast being hijacked by an unauthorized party, the most famous of which was the Max Headroom incident, the culprit was never caught in that instance. However, the first instance of BSI occurred in 1986, when a man going by the pseudonym of “captain midnight” hijacked HBO’s broadcast. Captain midnight was eventually caught and he was subjected to a mere $5,000 fine and one year probation. Why was the punishment so meagre? Because the laws had not caught up to the technology yet. 

 

After captain midnight’s actions, congress passed the Electronic Communication Privacy Act, it states: “Whoever, without the authority of the satellite operator, intentionally or maliciously interferes with the authorized operation of a communications or weather satellite or obstructs or hinders any satellite transmission shall be fined in accordance with this title or imprisoned not more than ten years or both.”[7]  

 

‘Any satellite transmission’ that is the key phrase that makes what Burger King did illegal, the internet uses satellite transmission to transfer data, Twitch is a streaming platform on the internet, Burger King hijacked the transmission using a tool that was meant for other purposes, i.e. broadcast signal intrusion.

 

There are 2 scenarios where this could go down; either the government punishes Burger King to the fullest extent of the law and makes an example out of them or this is the “captain midnight” incident of streaming; the first violation that showed where laws need to be updated to cover acts that are undoubtedly dangerous. 

Burger King spent pennies on the dollar getting their products in front of people’s eyes without even an extra cent paid to the content creators. We’ll have to wait and see if they pay the full price now. 

 

References

[1] "Twitch (service) - Wikipedia." https://en.wikipedia.org/wiki/Twitch_(service). Accessed 10 Oct. 2020.

[2] "Twitch: The streamers furious at Burger King - BBC News." 22 Aug. 2020, https://www.bbc.com/news/newsbeat-53862091. Accessed 14 Oct. 2020.

[3] "Google and YouTube Will Pay Record $170 Million for ...." 4 Sep. 2019, https://www.ftc.gov/news-events/press-releases/2019/09/google-youtube-will-pay-record-170-million-alleged-violations. Accessed 14 Oct. 2020.

[4] "Statement of Commissioner Rohit Chopra Regarding the ...." 12 Feb. 2020, https://www.ftc.gov/system/files/documents/public_statements/1566445/p204500_-_endorsement_guides_reg_review_-_chopra_stmt.pdf. Accessed 17 Oct. 2020.

[5] "How to Add Text-to-Speech to Donations to Your Stream | by ...." 21 Feb. 2020, https://blog.streamlabs.com/how-to-add-text-to-speech-to-donations-to-your-stream-548e9908b451. Accessed 17 Oct. 2020.

[6] "Guides Concerning the Use of Endorsements and ...." https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf. Accessed 17 Oct. 2020.

[7] "18 U.S. Code § 1367 - Interference with the operation of a ...." https://www.law.cornell.edu/uscode/text/18/1367. Accessed 17 Oct. 2020.