In recent years, competition authorities around the globe have indicated an increased interest in the video game industry. As noted in a 2019 perspective paper by the US FTC, video games have evolved from being static one-time purchases to functioning as a dynamic service where players can make further in-game purchase, or microtransactions, for in-game content.
With the development of new monetization strategies, new deceptive marketing practices have also emerged. In particular, mobile game publishers have been criticized by both players and industry observers for publishing deceptive advertisements making use of embellished or unrelated gameplay footage in order to entice individuals to download what are often simple and lacklustre mobile games. The goal of these advertisements is not to necessarily achieve a high degree of player retention, but to maximize consumer exposure and attract the sizeable minority of players whom are willing to spend money for in-game microtransactions or sit through a large number of in-game ads which generate ad revenue.
Deceptive Gameplay Footage in Video Game Advertising
There is a recognized degree of difficulty when reviewing advertising that features purported representations of gameplay and in-game content. Compared to more traditional advertising which shows dramatized representations of video games that are evidently disconnected from actual in-game content, such a distinction is blurred with the use of gameplay footage and brings into question the acceptable degree of flexibility or “artistic license” that publishers may have when marketing their respective games. In this respect, two decisions from the UK’s Advertising Standards Authority (ASA) provide contrasting examples illustrating the difficulty in addressing this legal question.
In 2016, the ASA dismissed a complaint against a video game publisher over marketing materials for “No Man’s Sky”, an open world space and planetary exploration game. In that case, complainants stated that some of the game’s content and graphics were not as depicted in the allegedly misleading marketing materials. The ASA considered a wide range of issues but generally concluded that any apparent differences with in-game content were unlikely to substantially impact a consumer’s decision to buy the game, and any differences with in-game graphics were subject to consumer understandings that graphics were dependent on the power of the consumer’s computer. In concluding their decision, the ASA “acknowledged that … advertisers would aim to show the product in the best light” and “that the overall impression of the ad was consistent with gameplay and the footage provided… and did not exaggerate the expected player experience of the game.”
In contrast, in September 2020, the ASA upheld a complaint against a mobile game publisher concerning deceptive Facebook advertisements for two mobile games. In this case, the ads showed a game where users pull pins in a specific order to solve a puzzle. However, such puzzles were only available once every 20 levels, with all other levels being simple “match-three” style games where players simply moved shapes so as to match three in a row. In their decision, the ASA found that consumers would understand from the ads that the content featured was representative of the games overall. While the publisher included text which stated “Not all images represent actual gameplay”, the ASA found this insufficient as consumers would still expect the two mobile games to consist of a similar sequential problem solving puzzles as opposed to a “match-three” style game.
The seemingly disparate conclusions reached by the ASA were clarified in a recent 2021 bulletin where the ASA summarized that their consideration of gameplay is “context and content” specific and should be undertaken on a “case-by-case” basis. Citing their 2016 decision, the ASA specifically noted that there may be some features that are “unlikely to affect a consumer’s decision to make a purchase” and other extenuating circumstances that “will impact on visuals and gameplay being replicated by players.”
Assessing Deceptive Gameplay Footage under the Canadian Competition Act
While there have not been any similar decisions in Canada, it is clear that such deceptive practices are within the ambit of Canada’s Competition Act.
The Competition Act prohibits the making of a false or misleading representation to the public by “any means whatsoever”. Any potentially deceptive representation is assessed as to whether it is (1) “false or misleading”; and (2) “false or misleading in a material respect.” In regards to the first factor, it involves, among other things, an analysis of the “general impression” conveyed by the representation which is assessed from the perspective of a “credulous and inexperienced” average consumer. In regards to the second factor, “materiality” is defined as whether the representation would influence a consumer in deciding whether to purchase the product being offered.
In the context of such an analysis, a similar “case-by-case” approach as described by the ASA would appear to be applicable in the Canadian context. While the application of such an approach may be more difficult for complex video games where authorities must consider alleged misrepresentations amid a myriad of content and features, such difficulties are evidently lessened for simple mobile games with fewer moving parts. The comparatively simple parameters of a mobile game make any alleged misleading representation of gameplay more likely to be material from the perspective of the average consumer. Furthermore, the simplicity of a mobile game makes it easier for a publisher to provide a more encompassing impression of their mobile game. In turn, this underscores the comparative ease for regulatory authorities to see whether the general impression conveyed by featured gameplay footage is actually in line with the content available to mobile game users.
Avoid it being “Game Over” – Comply with the Competition Act!
Mobile game publishers who advertise their games to Canadian consumers with deceptive gameplay footage run the substantial risk of being in violation of the Canadian Competition Act. Accordingly, in avoiding any enforcement action and potential penalties, mobile game publishers should be cognizant in ensuring that any marketing materials making use of purported gameplay convey an accurate representation of actual gameplay content.