Rules for in-game advertising
In 2003, to accompany the increasing spread of computer games, companies began to integrate targeted advertising into computer games ("in-game advertisement").
In general terms, a distinction can be made between two types of in-game advertising. Firstly, static in-game advertising, where the advertising is permanently integrated into the computer game in a format that does not change. Secondly, dynamic game advertising where the advertising is only temporarily inserted into the computer game. An example of this would be in football computer games where the perimeter advertising in a virtual football stadium advertises products from a different company each week.
In addition, advertising will sometimes be adjusted according to the respective players and their preferences so that in a single computer game, where several players are playing simultaneously, different advertising will be shown to each individual player. Due to the fact that the in-game advertising requires a sustained connection of the player with the internet, it is predominantly browser games which contain in-game advertising.
Up until now, the German courts have not really had to deal with the question of in-game advertising. This means that much of the legal basis for this advertising remains unclear and specific legal provisions for in-game advertising do not exist. The lawfulness of the placement of advertising in computer games is therefore judged according to general legal principles, which can prove difficult in individual cases.
Advertising which appears in computer games in classical advertising spaces such as perimeters, display areas and hoardings, poses less of a problem. If the advertising is identified as such or is clearly recognisable as advertising, there is generally no danger of breaching the prohibition on so-called ‘concealed advertising’ found in competition law. In addition, sponsored computer games which are directly programmed for advertising partners, do not pose a problem provided these games only specify the name of the sponsor or the advertised product (“sponsored by” / “supported by”) or if the entire game is clearly recognisable as an advertising game.
Legal difficulties can arise if branded products are directly incorporated into the virtual reality of the computer games and are not immediately recognisable as paid advertising. A distinction must be made here between browser games and “traditional” computer games. For the latter, the same basic principles should apply as those for product placement in feature films, in spite of the fact that there is no case-law on this point which has been handed down by the highest German courts. Therefore, in the case of traditional computer games, the isolated placement of products in the game should be permissible, provided this is in moderation. This should be satisfied by indications on the packaging, at the point of registration for the game and in the leading and end title credits when downloading or saving the game. Until this matter is decided by the German courts, the advertiser must accept however that a legal risk remains.
The law imposes stricter requirements on browser games because these are also subject to the broadcasting provisions for telemedia. Accordingly, any kind of product placement is prohibited; advertising and content must be strictly separated. It is only possible to sponsor them.
Furthermore, caution must always be exercised in the case of games which are primarily or additionally aimed at children. On the one hand, advertising is not allowed to directly call upon children to purchase products. On the other hand, it is much more difficult for children to distinguish between a game and its advertising. What is decisive here is the point of view of an average child from the target group and whether they feel called upon to purchase a product.
The Regional Court of Berlin recently imposed an injunction against the provider of a browser game which is relevant here. This provider had placed directly next to game symbols similarly designed advertising banners and the court held that from the point of view of children, the banners were not sufficiently recognisable as advertising.
If the in-game advertising goes so far as to amount to a nuisance, such as unreasonably long advertising slots or pop-ups which cannot be clicked away, the game can be attacked under competition laws.
In the case of computer games which can be purchased, the average computer game player is accustomed to the fact that the computer game manufacturer includes advertising at discreet points in the game. In order to avoid false expectations on the part of the buyer, the extent of any advertising should be recognisable to the buyer prior to purchase. Otherwise there is a potential risk of claims being made under the warranty for defects against the game manufacturer or the seller of the game.
There are still many unanswered questions concerning the legal position on in-game advertising. The limited number of court decisions do indicate however that even the more audacious uses of this innovative form of advertising have been met with little opposition from the authorities, competitors or associations. Provided the advertising is kept separate from the game, is designated in the computer game as advertising or is recognisable as such, advertising in the virtual world of computer games is ultimately subject to the same requirements as those imposed in the real world. It is only in the case of hidden advertising such as concealed sponsoring or product placement that the limitations are more stringent. Furthermore, in the case of advertising in browser games, stricter requirements must be complied with for the separation of the game from advertising and the prohibition on product placement.
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"Up until now, the German courts have not really had to deal with the question of in-game advertising. This means that much of the legal basis for this advertising remains unclear and specific legal provisions for in-game advertising do not exist."