Level Up Level7 marketing advertising content ratings

Level Up - Level 7 - Marketing Advertising & Content Ratings

Advertising plays a large part in the success of a video game and can be used to either promote the video game itself or as a source of revenue. Indeed, many popular 'free-to-play' titles rely heavily on in-game advertising as part of their monetisation model and even the larger players, including Sony^[1] and Microsoft^[2], have reportedly been considering the introduction of in-game advertisements for their respective 'free-to-play' catalogues.

Advertisements are subject to a number of codes and regulations which are designed to protect consumers by promoting transparency and preventing misleading communications. Both advertisements for games and in-game advertising will need to comply with applicable rules and regulations in the relevant jurisdictions in which the video game is marketed or commercialised to consumers. Further, a number of legislative changes have recently been proposed in the UK and EU via the Online Advertising Programme, Online Safety Bill, the Digital Services Act and more, which will impact the world of online gaming and advertising, particularly in relation to the content presented to minors and vulnerable individuals that form part of the gaming community. Key stakeholders should therefore take advice and perform compliance checks as early as possible to reduce the risk of incurring any sanctions and/or reputational damage.

With the above in mind, we wanted to create an all-in-one guide for those that currently operate in or are considering entering the video games industry with the purpose of providing an overview of the life cycle of a video game – from the early stages of development, past the grind of regulatory compliance, through to the final stages of monetising the product. The result is "Level Up: A Guide to the Video Games Industry".

In Levels seven (below) and eight of the Guide, we look at the regulatory landscape that exists to protect consumers (including key principles under the advertising and consumer protection regulations) along with recent case studies and the steps that key stakeholders should be taking to comply with the applicable regulations.

To access the full PDF guide, please email talkingtech@cliffordchance.com

Level Seven: Marketing, Advertising & Content Ratings

Advertising Codes

Video game publishers must ensure that any advertisements, marketing materials and/ or promotions made in connection with a video game comply with the relevant advertising codes and regulations within the territory in which the game is commercialised. For instance, the ASA is responsible for administering CAP and BCAP advertising codes in respect of all advertisements in the UK.

In-game advertising is not currently covered by any specific broadcasting or advertising code; however, the advertising codes’ general principles of transparency, ethical marketing and protection of the consumer are still applicable to advertisements used in connection with video games. Further, the ASA has published a consultation and draft guidance ^[3] on proposals to introduce new formal guidance on advertising in-game purchases (see Level 10).

Compliance with the advertising codes is mandatory and applies not only to advertisements made to promote the video game (e.g., commercials; posters) but also any advertisements that may be shown within the game itself (e.g., advertisements and banners within free-to-play game apps).

Key considerations

Given that video games are enjoyed by both young and old gamers, it is important that video games are only advertised to age-appropriate audiences. Video games are therefore rated to give consumers guidance on content such as violence, sexual references, drugs, offensive language and other such age-appropriate content.
In the UK and EU, video games are rated for age appropriateness using the Pan-European Game Information (PEGI) standard. The PEGI system is self-regulated and based on a code of conduct to which every games publisher is contractually committed. It comprises five age categories and eight content descriptors that advise on the suitability of a game for certain ages based on the game’s content. The Entertainment Software Rating Board (ESRB) is an equivalent rating system used in North America.
Marketers therefore need to be careful about the inclusion of certain content (e.g., sexual imagery, references to sex, depicting weapons, violence, offensive language, criminal acts), and to assess the risk and appropriateness of such content on a case-by-case basis.
- EA used to promote FIFA loot boxes in a toy catalogue and on in-store promotional material. The catalogue advert listed the four steps of playing “Ultimate Team” mode on FIFA 21, with step two being to “use FIFA Points to open packs”, and the in-store advert promoted the use of FIFA points and advertised wallet top-ups for the PlayStation Store. FIFA Points are virtual currency that players can use to purchase “player packs” – i.e. randomised loot boxes where players can unlock new football players for use in-game. In response to backlash on social media, EA removed the adverts and reviewed its marketing practices in connection with younger players.
- Advertisements for “free-to-play” games should provide the consumer with an accurate depiction of gameplay without paid content in order not to be misleading.
Publishers will want to strictly comply with the advertising codes in order to avoid entering into any adjudication process with the ASA, which can be burdensome and often leads to reputational damage if not handled swiftly and appropriately following legal advice. For instance, video games developer Playrix was recently “named and shamed” by the ASA for using misleading advertisements which showed non-representative gameplay in connection with its mobile games, Homescapes and Gardenscapes.

References

[1] Sony reportedly considering in-game ads for free titles - Games Insustry Biz https://oltnews.com/sony-reportedly-considering-in-game-ads-for-free-titles-gamesindustry-biz

[2] Microsoft considering in-game ads for free-to-play titles - Report - Games Insustry Biz https://www.gamesindustry.biz/articles/2022-04-18-microsoft-considering-in-game-ads-for-free-to-play-titles-report

[3] Following publication of the Guide, the UK Government has since issued its guidance on advertising in-game purchases: https://www.asa.org.uk/static/4028c436-5861-4035-8d98c148d3c66b7e/Guidance-on-advertising-in-game-purchases.pdf