My colleague Pete Lewin from my firm Purewal & Partners has written a great practical guide to what about the video games industry needs to know about the UK’s new Consumer Rights Act 2015, which introduces a new series of consumer rights in games. Check it out!
Earlier this month, the UK’s Advertising Standards Authority issued a ruling against Mobjizz Limited, owner of Ewank.com (an adult services provider) for displaying adult ads in Talking Tom (owned by Outfit7), the popular mobile app that is particularly popular with young children as a kind of game.) The adult ads apparently involved three nearly naked women. The complaint was made by the parent of a five year old who saw the ad while playing the app.
Essentially, Mobjizz and Outfit7 said the same thing: they had strict rules in place against this kind of thing but had no idea how this had happened anyway. Both seemed to suggest that a rogue affiliate (whom they could not identify) may have been involved in serving the ad in breach of their rules.
The ASA, unsurprisingly, upheld the complaint against Mobjizz. In its usual polite way, the ASA expressed thanks to all parties for cooperating but said that this ad should not be shown in the future, nor generally should Mobjizz show adult ads to children in the future. As is usual in these kinds of cases in the UK, it seems that the matter will not be pursued further and neither Mobjizz nor Outfit7 will face any penalties or further legal action.
Comment: this is about the third or fourth time that I have come across adult or otherwise inappropriate mobile or online ads being displayed to inappropriate persons, ESPECIALLY violent or adult ads being shown to children. In each case, the defence by the advertiser, the ad network and the app/game/service is usually that they have rules in place and don’t know how those rules were breached. In each case, my strong suspicion is that those rules are simply not followed by or enforced against the affiliates or other links in the chain between the advertiser and the actual consumer. Clearly this is very concerning from both a legal and a consumer standpoint: it simply shouldn’t happen. However, in the absence of concerted industry self-regulation (of which there is no current prospect) or serious legal claims with substantial enforcement to back them up, I’m afraid I can’t see much of an end in sight. The best we can hope for is that the apps/games/online services will take more care in picking their advertiser partners in order to avoid this kind of public naming and shaming in the future.
Moral of the story: if you enable ads on your mobile or online app/game/service, pick your advertising partner carefully! The wrong ad can cause you significant reputational harm and could (but probably won’t) lead to legal action.
If you decide you don’t want your purchased Steam, Xbox Live or Apple iOS game anymore, or if it doesn’t work as promised or at all, what rights do you have legally?
I get such questions a LOT. While there is a body of law about this area of consumer protection, sadly there is little in the way of actual, specific legal decisions applying those laws to this situation to to which I can point. So I read with interest some recent news out of Australia on the consumer protection front: the Australian Competition and Consumer Authority is to investigate Steam, the world’s largest digital distribution platform for games, over concerns that it does not comply with Australian consumer protection law, particularly relating to refunds and returns.
Here’s something interesting that happened recently: customers of online retailer Zavvi ordered a new game called Tearaway but the retailer mistakenly shipped out to them the game AND a (much more valuable) PlayStation Vita handheld console (see here). They realised their mistake and have since apparently threatened legal action against customers refusing to return the goods.
So here’s a classic legal question for you: when you give someone something different to what either of you were expecting, what happens? Who’s in the right? Continue reading What happens legally when a retailer sends you a console bundle instead of a game?
Last year I gave a lecture at the Gamer Tech Law conference in Seattle with the rather ambitious title of “Going Global: legal and business issues for international games development and distribution”. As you can imagine, that’s a lot to cover – even in a lecture directed at other lawyers. Anyway, below is the lecture I delivered, in which I talked the audience through international angles on: contracts, IP, distribution structures, consumer protection, advertising, age ratings and privacy. Enjoy! Continue reading An international legal guide to games development and distribution
This is going to be a relatively short post, because two other writers have already a lot of my work for me.
Step 1: read Rob Fahey’s editorial on Gamesindustry.biz: “How to control free-to-play spending?”
Step 2: read this Wall Street Journal feature: “Mom, please feed my apps!”
Step 3: let’s have a quick chat… Continue reading How long until free to play and in-app purchases are regulated?
UPDATE: I’ve just seen New Media Age report that “Non-compliance with CAP Code could prove devastating for brands” – so there you go!
- What exactly does the ASA mean by it regulating “in-game advertisements” and “advergames that feature in display advertisements”? Is there to be a distinction between them and product placement
- How will the ASA determine when in-game adverts come under its oversight? Presumably there has to be a UK element, but what does that mean? Do the advertiser, complainant consumer and the advert itself all have to be in the UK?
- Who comes under ASA oversight – the host games company, the advertiser or both?
- How will the views of the games industry be represented in in-game advertising matters?
- How will the provisions of the CAP Code be applied to in-game advertising, which in its nature can be much more creative than traditional broadcast advertising? The CAP Code itself is drafted in easy to understand language, but the language and the practical implementation are two different things.
- In-game billboard ads (e.g. on a console sports game)
- In-game ‘items’, e.g. a Ford car displayed in Second Life or a Coca-Cola drink advertised or even given away in a social game
- In-game avatars walking around shouting advertisements
- Advergames, which are free to play but intended really as a channel for advertising communications
- Viral advertising in which players are encouraged themselves to advertise products in-game (probably in return for in-game rewards)
- In-game events/sequences/dialogue which may not have been intended to act as advertising but which nonetheless could be regarded as advertising.
- Even though it is not clear how in-game advertising is going to be regulated, if you do any in-game advertising business in the UK, you still need to ensure you are as compliant with the CAP Codes and other legislation as possible. The potential reputational and commercial risk may be too big to do otherwise.
- So, what to do? First, read the CAP Code carefully and consider whether your current advertising policies meet its requirements. The CAP Code has particular requirements regarding a whole range of matters, including misleading advertising, children and consumers among others. You need to make sure you fulfil those requirements.
- Don’t think that you can do one thing with your tv games adverts and your in-game ads. It is going to become increasingly difficult to run ads which might be ‘creative’ with the facts in the future, across the board.
- Don’t assume that because you are based outside the UK you will not be caught by ASA oversight. It is at least arguable that any in-game advert which displays in the UK is caught, even if the advertiser is outside the UK.
- Remember that compliance with the CAP Codes does not relieve you of your other legal obligations, e.g. not to mislead consumers, to comply with consumer protection laws and with games age rating regimes and so forth. In other words, you need to make sure all the rest of your legal compliance is in shape too, not just advertising compliance.
- CAP Services run regular updates with useful additional information – subscribe to them here: http://bcap.org.uk/CAPServices.aspx.
- (Yes, it’s time to sell our wares) If you have any questions regarding any of the above stuff, come and talk with friendly lawyers 🙂 The chances are that you won’t know you have a problem with your advertising until a complaint is made, so best you are prepared now as you can be.
As for the actual means being proposed, this sounds similar to the ‘graduated response’ system proposed in the EU (and now enacted in the Digital Economy Act in the UK), albeit focused on combating online games addiction rather than copyright infringement. Will we see gamers in South Korea and elsewhere voicing the same kind of opposition to these methods as gamers in Europe have?
[Image credit: govdocs.evergreen.edu]