Unlawful advertising directed at children in online games

Advertising in online games directed at children is unlawful under competition law. However, when should advertising be classified as a direct purchase request directed at children?

The online games provider Gameforge advertised on the website of the online fantasy role-playing game "Runes of Magic" inter alia with the statement"Grab the bargain and give your armour & weapons that certain 'something'!"for the paid acquisition of (virtual) gaming items. Upon clicking a link, a new web page opened, which detailed the advertised accessories together with prices and could be purchased directly. Payment was possible both by credit card on a prepaid basis and via SMS.

The Verbraucherzentrale Bundesverband e.V. took legal action against this form of advertising, claiming that it constituted a direct purchase request directed at children to acquire the advertised goods themselves, which is always unlawful under competition law.

Court decision

The Federal Court of Justice (BGH) ruled in favour of the consumer protection advocates and prohibited Gameforge from advertising with the contested slogan by means ofjudgment of 17.07.2013 – Az. I ZR 34/12.

In its reasoning, the Federal Court of Justice (BGH) stated that "on the basis of the advertised product and the entire manner of address, it must be assumed that minors are primarily being addressed, in particular also minors who have not yet reached the age of 14".

The Federal Court of Justice (BGH) further noted that, in its view, the use of the informal 'you' (Du) alone is not sufficient for this assessment, since such use is meanwhile not uncommon even in advertising directed at adults.

However, the advertising in question is linguistically characterised by "consistent use of direct address in the second person singular and predominantly childlike terminology, including common anglicisms".

The judges considered this to be sufficient to establish a targeted address to minors, including minors under 14 years of age.

Furthermore, the necessity to click on the link does not deprive the request to make a purchase of its directness and does not constitute an additional step to be overcome, since internet users are accustomed to obtaining further information by clicking on links.

Conclusion

The judgment of the Federal Court of Justice (BGH) is not yet final, as Gameforge has lodged an appeal against this default judgment. It therefore remains to be seen whether the Federal Court of Justice (BGH) will maintain its previous position.

Nevertheless, the Federal Court of Justice (BGH) judgment gives reason, for the time being, to exercise the utmost care in the formulation of advertising statements, in particular when using language styles typical of computer games, and to critically review one's own advertising slogans, in particular if these are linked to shop offers.