Gaming the system: advertising and video games

The games industry is no longer the exclusive realm of bedroom-dwelling teenagers. It is estimated to be the second most valuable of the entertainment media (behind TV) by global revenue and now ranges from AAA titles with combined development and marketing budgets of over $316M (as reported by CD Projekt RED for Cyberpunk 2077) all the way to hyper-casual mobile apps designed to ensnare all demographics.

With such budgets and audiences comes widespread advertising. The UK has a robust advertising regulatory system with which all advertising should comply. This is principally located in the UK Code of Broadcast Advertising (which applies to all television and radio advertising – the BCAP Code), and the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (which applies all non-broadcast advertising – the CAP Code). The BCAP Code is enforced by Ofcom, whereas the CAP Code is enforced by the Advertising Standards Authority. Guidance is also offered by the Broadcast Committee of Advertising Practice and the Committee of Advertising Practice which cooperate with the ASA.

Given concerns around addictive behaviour and spending patterns associated with video games, particularly in relation to children and other vulnerable groups, there are specific rules and additional guidance around adverts for and in games.

Although advertisers publishing especially egregious advertising can be subject to fines and other criminal penalties, the main harm which will be incurred by non-compliant advertising is reputational. The ASA publishes rulings against advertisers which breach the rules and these are regularly picked up by the press in respect of high profile individuals and organisations so there is a real incentive to get it right.

Ad law fundamentals: being recognisable and not misleading

The most basic principles of UK advertising law are: 

Ads should be recognisable as ads

In the case of, for example, game ads on TV or VOD platforms, ads on signage at bus stops, or banner ads online, it will be obvious that such ads are ads. This can be more difficult with influencer marketing or affiliate advertising. If a games livestreamer is paid by the publisher to endorse a game, but does not convey to their followers that the endorsement is paid-for, there would be likely to a breach of this principle.

In the case of affiliate advertising, if an advertorial article praises the features of an upcoming title, without making similar disclosures, then this could constitute "astroturfing" which would also fall foul of rules on identification of ads. For more information about influencer marketing, please read here.

Ads should not be misleading

Ads should not have a misleading effect on consumers; this encompasses both specific claims and content of an ad, and also the overall impression created. For example, the ASA has upheld complaints made against games publishers in respect of the use of pre-rendered footage created specifically for an ad which did not accurately represent real gameplay, and where it was not clarified that such footage was not generated with the in-game engine.

Omissions can also be misleading. For example, if features of the game are accurately illustrated, but the ad omits to say those features require additional purchase on top of the core game (such as extra DLC) then this may also be deemed misleading.

But there's more to think about

There are many additional rules under the CAP and BCAP Codes applying to particular products, which may also overlap with rules on game ads including where such products feature age-restricted products or services (such as gambling, alcohol, HSFF food and drink), or where they target children or contain material considered to be particularly sensitive in relation to children (see more here).

Promotions in respect of games are also subject to specific rules. In addition to the basic principles outlined above, these broadly require that promotions are operated fairly for all participants and potential participants, and that significant conditions applying to the eligibility for, or use of, a promotion should be very clear.

Sex, drugs, rock, roll n' violence

CAP and BCAP have also published guidance on content specific to games and films. Essentially, advertisers and media owners should ensure that game ads are responsible, taking into account the content and context of an ad. This is particularly true where ads are likely to be seen by children.

Among other things, the guidance highlights the importance of appropriate broadcasting and depictions of violence, weapons, sexual content and drugs.

• Ads should be appropriate to the anticipated audience demographic. For example, on TV, games classified with 18+, 16+ or 12+ PEGI ratings should not be scheduled in or around programmes that are likely to attract young children. The same would be true for streaming or VOD services where a specific video is likely to attract young children.
• The guidance does not preclude the depiction of violence, or implied violence, in game ads, as many games include violent content. However, particularly brutal, graphic or realistic depictions of violence can cross the boundary of responsibility. This is especially the case where the violence appears to be glorified, or where the ad appears in a setting where it could be seen by anyone – such as on a billboard near a school, or on a banner on the front page of a popular website.
• The same applies to depictions of weapons and particularly guns. Realistic-looking human characters using weapons or being injured by them are highlighted as especially risky.
• Gratuitous nudity, sexual images and innuendos should also be used with care. The guidance notes that these can cause serious and widespread offence, especially in untargeted media where children or those likely to be offended could view them.
• Special care is recommended around referencing drugs in ads. This would need to be related to the game being advertised without being socially irresponsible or condoning the use of drugs, which we consider would be challenging.

In-game purchases and loot boxes

CAP and BCAP have recently issued new guidance targeting the advertising of in-game purchases. In summary, this guidance is designed to help publishers understand how their respective Codes relate to their in-game and storefront communications. This particularly focuses on pricing and presentation of in-game purchases.

The overall message for games publishers and marketers is simple: be clear, upfront and transparent about the game, and don’t pressure or mislead people into making in-game purchases.

This guidance is particularly relevant to the advertising of loot boxes; advertisers should not make unsupportable statements about the chances of winning certain items, and should also notify gamers up front if a game will contain loot box-type functionality. For more detail see here.

Is change coming?

Blurred lines between some video games and gambling, for example, through novel monetisation techniques, are attracting increased scrutiny (see here for more), Loot boxes have been particularly controversial in recent years with MPs and campaigners calling for them to be classified as gambling.  This could lead either to a ban on loot boxes in video games, or to new rules on advertising them.  The addictive nature of some games is another focus for regulators and this may also impact the rules on advertising games, or possibly their interpretation by the ASA and industry regulators.  Games publishers and advertisers need to be alive to incoming changes.