The laws and loopholes behind Burger King’s Twitch donation marketing campaign

Ryan Morrison, the Video Game Attorney, and Ross O'Donovan, a streamer involved, discuss Burger King's "scummy" tactics

Burger King has come under fire recently following its viral marketing campaign which included using Twitch streamers’ text-to-speech donation tools for the purpose of promoting its products.

The campaign was ran by advertising agency Ogilvy, and involved Burger King, using the name The_King_Of_Stream_US, donating amounts of between $3-$5 dollars while using Twitch’s donation message system to advertise menu items equivalent to the price of their donation. For example, if they donated $5, the corresponding message would be an ad for the $5 dollar menu.

This has not gone down well with the intended audience, however. Many streamers are unhappy with Burger King’s marketing tactics, with some labelling it as ‘unethical’ and ‘scummy.’ Others have also questioned the legality of the campaign. To clear things up, we spoke to Ross O’Donovan, one of the streamers unwittingly targeted by Burger King, as well as Ryan Morrison of Morrison Rothman LLP, also known as the ‘Video Game Attorney’.

O’Donovan thought at the time the stunt was just “a viewer making a very unfunny joke,” and didn’t find out it was a real campaign until the Burger King advert went live last week.

When it started happening I asked ‘Is this actually Burger King?’, which they didn’t answer,” O’Donovan says, “I didn’t realize this was an advert until just recently. Keep in mind this happened on July 4 of this year, we’re only realizing what it was now.” 

He also questions whether the advertising complies with FTC regulations, something Morrison provides more clarity on, “This is getting advertising without paying for it… [but] the difference to the FTC and other governing bodies is that the streamer is not endorsing this product,” Morrison says.

“Accepting a donation in text to speech is not the same as the person on the stream holding up a Whopper and saying ‘buy this’ or having a panel in their stream. This is different – this is a donation, and the text to speech donations are constantly used for things that streamers don’t support or understand.”

Just because it might have an FTC loophole doesn’t mean Burger King is in the clear though. “The legal question here is fairly simple,” Morrison says, “This was done through Stream Labs and their terms of service is clear that using this feature for commercial purposes is not okay. You’re not allowed to do it. So that’s the that’s the end of the conversation in terms of ‘Is this a breach of the service Terms of Service Agreement?'”

“Now, that doesn’t mean it’s illegal,” Morrison adds,” That just means it’s in violation of the terms of service for that website.”

The issue of sponsorship has also been raised. In the advert, one streamer says “are you gonna sponsor me?”, at which point text flashes up on the screen saying “we just gave you five dollars!”, but Morrison is unconvinced of any illegality here, either.

“I feel similarly about it that this is still clearly not the person endorsing it. You don’t get to demand a contract. I think if the streamer was endorsing it, or forced to endorse it, there’d be a lot of different implications and problems there. And Burger King would be liable not only of breaching potential guidelines from the advertising bodies, but also tortious interference. What if the streamer’s already sponsored by McDonald’s or something like that?,” Morrison says.

“There’s a plethora of of legal issues and concerns and problems here that I can’t imagine Burger King’s in-house legal had a very happy Monday. But this is not forcing the streamer to have a long term donation button or a long term platform or image on there.”

Morrison added that the FTC is known to take community feedback, because it creates legislation rather than laws, and so takes advice from the places it is regulating. From Twitch, it’s clear the community has set a precedent going forward; “I don’t think any other company on Earth would try this after the negative reaction here. It’s just not worth the hate, you know, the ‘all press is good press’ is just not true.”

“So I don’t expect [the FTC] to come down with regulations based off this one thing, but I do think this is something that they’re aware of that they’ll take seriously and consider in in future decisions. And I would be very surprised if they launched an investigation here or did anything deeper than just ignoring this on the outside, but internally, I’m sure they’re looking at it keeping it in mind for future regulations.”

While O’Donovan was one of the more scathing voices online, his main concern wasn’t so much over legal implications, but more that it was wrong. “Ogilvy would’ve been paid an extremely large sum for this campaign, so what they’re doing is dirty, cheap, and underhanded. I’ve seen a few people saying in response to this that  ‘streamers are so entitled’.  This is about a horrible precedent being set. Beyond disclosing free products that were sent to me, I’ve never done a brand deal on my broadcasts, so it felt dirty to be hijacked like that,” O’Donovan says, adding, “they’re doing this to cut corners and try to play it off as quirky. It’s not.”

Morrison echoes the idea of Burger King failing to be quirky here, saying “This was Burger King trying to be Wendy’s. Wendy’s has been really good at viral marketing and getting it on Twitch and getting it on streams. Wendy’s literally had a piece of bacon playing videogames on Twitch, they’re really good at it. This was Burger King’s ad agency trying to be young and hip and quirky and it missed, it missed big time.”

However, the attorney stopped short of calling the donations themselves exploitation, but feels the advert itself was closer, saying “I think exploitation is a pretty serious claim. And I don’t think this is that, I think this was a really dumb mistake by an ad agency trying to be young, hip, and quirky. They crossed the line officially to me and got towards exploitation by turning it into a commercial rather than just leaving it as the text to speech in the streams.”

While exploitation has a clear, legal definition with set ramifications, used without legal context and applied as a verb, it sums up how many streamers feel about this stunt, with O’Donovan saying, “I’ve turned down a significant amount of money because I don’t feel a lot of these brands that come my way are right fit for my community. So to have a seven billion dollar company hijack my content is just low.”

O’Donovan says he’s happy to wait and see what regulations come from the saga, but in the meantime has managed to find his own serving of revenge; “I’m very curious to see what the FTC thinks of this, but I guess we’ll wait and see. In the meantime as my own quirky goof, I perma-banned Burger King from my streams.”

We’ve contacted Ogilvy, the advertising agency behind the campaign, for comment but we have not yet had a response. We will update this story if one is provided. 

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