No 'du' form in online games?

Does every use of the 'du' form when addressing users in an online game also constitute anti-competitive advertising to children? The Regional Court (LG) Berlin had to decide on this legal question.

The Consumer Federation Bundesverband e.V (vzbv) objected to an advertisement by the provider of an online role-playing game. The provider had advertised virtual additional features while addressing the players – and thus also children – directly with 'Du'. The provider of the online game advertised with the following statements:

"Buy something new in the pet shop exclusive mount: Armoured Bloodwing – Get it now …"

The Consumer Federation consequently demanded that the advertisement be discontinued, as it took the view that the advertisement, through the personal form of address with 'Du', constituted an anti-competitive direct exhortation to children to make a purchase.

Point 28 of the so-called 'Blacklist', that is, the Annex to § 3 Absatz 3 UWG, establishes an impermissible commercial practice consisting of a direct exhortation included in an advertisement to children to purchase the advertised product or use the advertised service or to persuade their parents or other adults to do so.

The addressing of children in the 'du' form in the context of a purchase offer was therefore prohibited for the provider of an online game.

Decision of the Court

The Regional Court (LG) Berlin decided by judgment of 21.4.2015 – Az. 16 O 648/13 – that the use of the 'du' form when addressing players alone did not constitute a violation of competition law.

In doing so, the LG Berlin initially clarified that the term 'child' must be interpreted in accordance with Union law, since the 'Blacklist' is based on an EU Directive. In theory at least, an interpretation was therefore conceivable which understands all minors as 'children'. In this context, however, even under Union law interpretation, only minors under 14 years of age are meant.

The mere use of the 'du' form alone was not sufficient for a relevant breach of competition law, since it was a complex game which would generally not be played by children in this age group.

Conclusion

If this had been an online game whose target audience was in the age group up to 14 years, the advertisement objected to here would have been anti-competitive under point 28 of the 'Blacklist' as a prohibited direct form of address to children.