The Office of Fair Trading (OFT) has announced a consultation on its proposals to protect children from unfair and aggressive commercial practices. The proposals follow the OFT’s investigation into whether marketing for children's online games which encourages children to make “in-app” purchases breaches the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277).
The OFT concluded from its investigation that certain games did include unlawful practices which children may be particularly susceptible to (for example, by implying the player would somehow be letting other players or characters down if they did not make an in-game purchase or blurring the distinction between spending in-game currency and real money).
To protect children, the OFT has therefore proposed eight principles for the industry to follow:
- Information about the costs associated with a game should be provided clearly, accurately and prominently upfront before the consumer begins to play, download or sign up to it or agrees to make a purchase.
- All material information about the game should be clear, accurate, prominent and provided upfront, before the consumer begins to play, download or sign up to it or agrees to make a purchase. ‘Material information’ includes any information necessary for the average consumer to make an informed decision to play, download or sign up to the game or to make a purchase.
- Information about the business should be clear, accurate, prominent and provided upfront, before the consumer begins to play, download or sign up to the game or agrees to make a purchase. It should be clear to the consumer who he/she ought to contact in case of queries or complaints. The business should be capable of being contacted rapidly and communicated with in a direct and effective manner.
- The commercial intent of any in-game promotion of paid-for content, or promotion of any other product or service, should be clear and distinguishable from gameplay.
- A game should not mislead consumers by giving the false impression that payments are required or are an integral part of the way the game is played if that is not the case.
- Games should not include practices that are aggressive, or which otherwise have the potential to exploit a child’s inherent inexperience, vulnerability or credulity. The younger a child is, the greater the likely impact those practices will have, and the language, design, visual interface and structure of the game should take account of that.
- A game should not include direct exhortations to children to make a purchase or persuade others to make purchases for them.
- Payments should not be taken from the payment account holder unless authorised. A payment made in a game is not authorised unless informed consent for that payment has been given by the payment account holder. The scope of the agreement and the amount to be debited should be made clear to the consumer so he/she can give informed consent. Consent should not be assumed, for example through the use of opt-out provisions, and the consumer should positively indicate his/her informed consent.
Each proposed principle is accompanied by detailed guidance from the OFT which is designed to assist businesses by indicating behaviours that are more or less likely, in the OFT’s view, to comply with relevant consumer protection law. The consultation ends on 21 November 2013 and the OFT intends to publish a finalised version of the principles in late January / early February 2014.
The proposed principles provide welcome clarification as to where the OFT considers the boundaries for compliance lie in a sector that is attracting increased attention from regulators, media and the public alike, especially with the rapid rise of mobile devices and the spread of the freemium model of providing the basic version of online mobile game apps for free and then charging users for enhanced features. What remains to be seen is how aggressively the OFT is able to enforce the principles given the huge number of online game providers, many of which are based outside the UK.