Legal Eagles

2011 is set to be an interesting year, legally speaking, for the computer gaming sector. The pending changes to the CAP Code and data protection laws will affect the ways in which the sector interacts with users. In addition, the European Court of Justice is due to answer questions this year which could change the playing field for interaction between gaming companies. Here, Brett Farrell and Katie Hill from Barlow Robbins LLP discuss the potential impact of these changes.

CAP Code Extension - The Digital Remit

Game publishers and console manufacturers will undoubtedly be aware of the Advertising Standards Authority, CAP Code and the BCAP Code in relation to advertising. From March 1, 2011 the Digital Remit of the CAP Code will apply to:

Advertisements and other marketing communications by or from companies... on their own websites, or in other non paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts.

Advergames, in the sense of videogames used to promote products or the organisation which appear on the company's website or in other non paid-for space under the company's control are also now covered.

The phrase "directly connected with supply or transfer of goods, services" aims at the heart of the intent of an advertisement or other marketing communication. It is interpreted broadly and if the advertisement is trying to sell something, even if there are no prices displayed nor immediate call to action, it will be covered by the Digital Remit.

To determine whether material is an advertisement or marketing communication within the scope of the Code there needs to be a careful, case by case, assessment of its content and the context in which it appears. Two assessment criteria which may be helpful, but certainly not exhaustive are that the advert:

• has appeared in a same or very similar form as an advertisement in a paid for third party space; or
• may make reference to "an invitation to purchase" as defined by the Consumer Protection from Unfair Trading Regulations 2008. Simply put, it somehow communicates the characteristics of the product and the price in a way to enable the consumer to purchase it.

User generated content (UGC) is now also directly covered by the Digital Remit in two ways. Either you solicit UGC from the game community or a member of the game community gives it to you unsolicited. If you have adopted or incorporated the UGC into your marketing communications, then it is likely the UGC will be regarded as a marketing communication and must comply with the Codes.

Heritage advertising or advertising that is not part of the current promotional strategy and is used in an appropriate context will not be regulated by the Code.

Although there are attempts to set out principles to help users assess whether or not the Code will apply, in reality it's just not that simple. Application of existing principles in the Codes to your own website will undoubtedly present questions in the very grey area within your website of what constitutes a marketing communication to which the Code now applies where it didn't before.

Consider online trailers of a new title about to launch, arguably now covered by the Code. Perhaps the nature and layout of your website is such that the Code will apply to it. Checking compliance with the Digital Remit is going to be a big undertaking.

The extension will apply from March 1, 2011. In the meantime companies have a grace period to ensure that their advertising which is now covered by the extension complies with the Digital Remit before the Advertising Standards Authority starts reacting to complaints about companies (quite possibly through no fault of their own) allowing marketing communications, which now breach the CAP Code, to appear on their websites.