Last chance to comment on OFT consultation on online games

The OFT recently published a consultation paper on its proposed eight new sector-wide principles in relation to online and app-based games. Whilst the principles will not be legally binding, they make clear the OFT's views on businesses' obligations under consumer protection law. The principles were proposed following the results of the OFT’s investigation in April 2013 which highlighted concerns about pressure put on children to make in-game purchases because of pressure to do so within the games. It was found that, in some games, parents were unwittingly incurring large bills due to their children being misled by aggressive practices which exploited their inexperience and vulnerability (for example, by implying that other players or characters within a game were reliant on the consumer paying for something). The OFT considered that these types of practices may amount to undue influence.

Practices of this nature are likely to breach consumer law such as the Consumer Protection (from Unfair Trading) Regulations 2008, the Unfair Terms in Consumer Contracts Regulations 1999 and the Electronic Commerce (EC Directive) Regulations 2002. The new principles aim to create greater clarity and transparency in relation to what consumers are signing up for when they download a game.

The proposed principles are:

• Information about the costs associated with the game should be made before a purchase is made. This includes initial costs, unavoidable subsequent costs and optional extra costs.
• All material information should be clear, accurate, prominent and provided in advance.
• Information should be provided about the business publishing the game and there should be contact details for complaints or queries.
• The commercial intent of any in-game promotion or content should be distinguishable from game play.
• The game should not mislead consumers by giving the false impression that payments are essential to continue playing the game if this is not the case.
• Games should not include aggressive practices. This includes implying that a consumer is in some way inferior if they do not do something that requires payment or implying that players or characters will be let down if something in the game, which ultimately requires payment, is not done.
• Games should not include direct exhortations to children to persuade them to make purchases.
• Payments should not be taken from the account holder unless authorised. Opt-out provisions will not suffice and informed consent is required.

Whilst the principles are not intended to be comprehensive, they are likely to provide a clear benchmark to businesses, as a result of which consumers will have greater clarity when they purchase an online game and children should have greater protection when using the games. For businesses to comply fully with their legal obligations, safeguards such as increased password protection may have to be implemented to signify the account holder’s consent to payments.

The OFT is inviting comments on the principles by 21 November 2013 and the finalised version of the principles are likely to be published in early 2014.

Comments

[John Smith]

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[online games]

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