An #ADverse Effect: Are Laws Killing YouTubers’ Creativity?

#AD has changed once again and our memes are – supposedly – under threat. As online creators face a wave of new Internet regulations, TenEighty explores what it means for YouTubers and their content in the future.

The first large-scale advertising controversy started, unusually, with a chocolate biscuit. A challenge tasking YouTubers such as Thomas ‘TomSka’ Ridgewell, PJ Liguori and Emma Blackery to lick an Oreo as quickly as possible was banned by the Advertising Standards Authority in 2014, on the grounds that it was not “immediately clear” that the sponsored videos were adverts.

“Someone had complained to the Advertising Standards [Authority] that YouTubers were not disclosing that they were being paid to promote products,” Emma explains in a YouTube video later in 2017. “They weren’t disclosing sponsored videos, and that the ASA were now going to put in a guideline where we had to disclose that.”

As such, a new regulation governing online content had been introduced – a new process for signposting sponsored content which previously didn’t exist was created.

“Back then there were no real rules or guidelines governing this sort of thing,” Tom says in a 2017 video. “We didn’t really know what we were and weren’t supposed to do.

“Apparently, adding ‘this is a paid-for advertisement’ to the top line of the description and in the video annotation was not enough and the videos were demanded to be taken down.”

“The main thing to remember is that you need to make it obvious – any label you use to highlight the ad needs to be upfront, prominent, appropriate for the channel and suitable for all potential devices”

The new guidance gave birth to #AD and #spon, two hashtags used across social media by creators, sometimes interchangeably, to denote where money was involved. The community started to adapt to the new rules as much as the viewers were to the disclaimers. There was a sense of familiarity associated with them, and then it all changed again.

“Although it will always depend on the wider content and context, we usually recommend staying away from sponsorship, sponsored content, spon, #spon, #Sp […],” says the advertising regulator in its 2018 Influencer Guide. “This is because the ASA has previously made clear that labels like this don’t tell the full story and don’t go quite far enough to make it obvious that it’s advertising.

“The main thing to remember is that you need to make it obvious – any label (or other means) you use to highlight the ad needs to be upfront (before people click/engage), prominent (so people notice it), appropriate for the channel (what can you see and when?) and suitable for all potential devices (it needs to be clear on mobile too!).”

The #AD label previously used by creators had expanded, now including [AD – Gifted] to acknowledge gifted content, [AD – Paid Partnership] to highlight brand deals and [AD – Affiliate] to signpost affiliate links. The discussions continued as YouTubers expressed confusion over the three organisations involved: the ASA, the Committee for Advertising Practice (CAP) and the Competition and Markets Authority.

According to CMA & THE LAW:

★ No control or payment – free item/event = [AD – Gifted]★ Payment or being told what to post [AD – Paid Partnership]
★ Affiliate links need to be clear & declared [AD – Affiliate]

Guide: https://t.co/EUk3gBP016

— Gary C 🏳️‍🌈 (@oohgaryc) January 28, 2019

“We write the advertising rules that the advertising industry needs to abide by,” the CAP’s Emma Smith explains to a panel room at VidCon London. “We set up the Advertising Standards Authority 50 plus years ago to administer those rules independently of us. The CMA are the statutory regulator and they enforce the law.”

Once again, the YouTube community evolved whenever advertising disclaimers were no longer clear. But when a new form of disclosure becomes second nature to creators, are the adverts then acknowledged by consumers subconsciously? Can the balance ever be struck?

“The most important thing to note is that these things change and evolve over time. So what might be good disclosure today might not be good disclosure in three years’ time”

“That’s a really difficult one,” Emma Smith responds during the question and answer session of the panel, confirming that the CAP is looking into what labels consumers recognise at the moment. “The most important thing to note is that these things change and evolve over time.

“So what might be good disclosure today might not be good disclosure in three years’ time, or what isn’t good enough today might be good enough in three years’ time because everyone knows that that’s an ad now.

“So it’s all about looking at where we are at now,” Emma Smith explains. “What does your audience recognise? What does your audience know? What do they not know?” She goes on to add that it’s about “putting yourselves in the shoes of your audience”, with creators usually being “the best person to do that”.

“Everyone can have their own ways of doing it,” Emma says, “and so it becomes like the moment you see the little three little black and white lines on the top corner of the TV screen when the ads are about to start. It becomes subconscious that you know that that’s an ad, rather than you’re not even seeing it.”

It was a discussion around advertising which only lasted so long. A much larger debate around copyrighted material was taking place in Brussels, Belgium, and across the Internet. The European Union (EU) had unveiled plans for a new copyright directive, with its most controversial section, Article 13, calling for “appropriate and proportionate” content identification systems.

Most YouTubers responded with concern. The platform itself created a #SaveYourInternet campaign speaking out against the proposals, and the regulation was considered a ‘meme ban’ by campaigners.

“Suddenly I support Brexit,” creator Luke Cutforth joked on Twitter.

suddenly i support brexit https://t.co/UXgPxL94nu

— Luke Cutforth (@LukeCutforth) June 10, 2018

The picture painted by YouTube was bleak: “Imagine if you couldn’t watch the videos you love,” it says in a channel video. “We support copyright reform with an Article 13 that works for everyone.”

Elsewhere, YouTube CEO Susan Wojcicki took to the site’s Creator Blog to strike a familiar tone: “This legislation poses a threat to both your livelihood and your ability to share your voice with the world,” she warns creators. “And, if implemented as proposed, Article 13 threatens hundreds of thousands of jobs, European creators, businesses, artists and everyone they employ.

“The proposal could force platforms, like YouTube, to allow only content from a small number of large companies. It would be too risky for platforms to host content from smaller original content creators, because the platforms would now be directly liable for that content,” she goes on to add.

“What [Article 13] will mean for actual users and people… ultimately, there should not be any change”

Daniel Friedlaender, Head of Sky’s EU Office, holds a different view, telling a crowd at VidCon London that “memes will not be banned” under the parody exception of the law.

Daniel continues: “What will slowly change, we can hope, is that with this, a lot of the big platforms that have been using content and saying, ‘we’re not actually doing anything, we’re just hosting’, they will have to have systems in place so that creators can actually get their work monetised better, and they won’t be able to just take, and put up their hands and say, ‘no can do’. So that hopefully, is the outcome of this.

“What it will mean for actual users and people… ultimately, there should not be any change,” he says.

Yet millions signed a petition calling for Article 13 to be stopped, which, in the end, wasn’t enough.

In March 2019, members of the European Parliament backed the directive, a law which requires social media platforms to have content filters to protect copyrighted work. YouTube already has such a feature, through its automated Content ID system.

Yet YouTube’s software isn’t without its issues. Creators complain about record companies demonetising their content for seconds of music, and manual copyright claims filed incorrectly.

“They’re frustrated with copyright claims that are less than 10 seconds or incidental,” Susan writes in her latest open letter. “We also heard first-hand that our Manual Claiming system was increasingly being used to claim very short (in some cases one second) content or incidental content like when a creator walks past a store playing a few seconds of music.

“We were already looking into this issue but hearing this directly from creators was vital,” she adds. “We are exploring improvements in striking the right balance between copyright owners and creators.”

While YouTube continues to find the perfect middle ground between the two, creators continue to feel the pressure. Talk of YouTubers experiencing so-called ‘burnout’ carries on, but how much of a role does new regulation contribute to this? Does it impact a creator’s creativity?

“Oh my goodness so much,” says filmmaker and photographer Mandy Celine. “Creators are having to work harder and more often to see the rewards from the same views and their content did two years ago. Now it’s not just a video or two a week, it’s daily 15-20 minute video content that takes eight hours to film and eight hours to edit, an Instagram post, five to eight stories a day, etc, etc.

“Long term and as a job, it just isn’t sustainable without a team,” she adds. “This is not a problem I see getting better, unless the back end changes. I don’t think the playing field is as level as it used to be.

“I do not believe in and of itself the regulations will create burnout or stifle creativity – I believe stealing isn’t creative,” Mandy continues, “but the diminishing cost of AdSense that has been caused by all this, as AdSense lost on false copyright claims, will.”

“Creator burnout isn’t a result of copyright law, creator burnout is a result of dwindling returns on ad revenue and a lot of product changes YouTube have made favouring longer, cheaper, daily uploads”

Vlogger and musician Chris Bingham has a similar view: “These regulations won’t personally affect my creative projects at all,” he admits. “I’m still going to make a new series of PBFB [Past Bing, Future Bing], I’m still going to make music.

As creators discuss YouTube’s complex and mysterious algorithm, they do so in a time where online systems continue to change – as do the rules and regulations which control them. Whether individual creators can keep up with the updates, and be well informed about them, is an entirely different matter.

“Of course YouTube should be and could be doing more to educate users about copyright, but I doubt they will,” says Chris. “It’s a tough situation because users don’t generally like being told what to do.

“If you run a platform you shouldn’t be too prescriptive about how people use it. Imagine if Facebook started telling you to only upload high quality pictures, or if Twitter tried to correct your grammar? They don’t want to do anything that might turn creators away.

“Better to let them do whatever they want and deal with it later,” he says.

Yet creative freedom can only go so far. While some YouTubers push the rules of the platform to the limit, others talk of a competitor to YouTube where they are free to create the content they want without restriction or demonetisation.

For creators seeking reassurance amidst a wave of new regulations, the protection of memes will likely come as much needed comic relief. Although at the same time, the claim’s inaccuracy serves as a clear reminder for YouTubers to go direct to the policy makers for more information, something which would no doubt provide comfort for those anxious about what lies ahead.

As the regulation of online video continues, the power to define content falls into the hands of governments and corporations, and further and further away from the creators and viewers who watch them.