ADventures in Law

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Video games have come a long way from the days of Atari’s Pong; today’s games can contain fully immersive worlds complete with brand partnerships. Video game platforms, such as Roblox, which boasts over 100 million active users in its virtual world, can reach swaths of potential brand loyalists. For many companies and brands, video game marketing and partnerships are untapped areas that can be incredibly successful. However, there are special considerations that need to be assessed before you grab the controller.

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As an example, Roblox is a platform where users can play hundreds of different games created by other users. With a consumer base that includes a large number of children and the bright colors and animations of the virtual worlds that reside on Roblox, organizations should be wary of taking the plunge and developing stand-alone branded Roblox games or plugging sponsored content in popular Roblox experiences.

The <a href="https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-312">Children’s Online Privacy Protection Act</a> (COPPA) and the UK’s <a href="https://ico.org.uk/for-organisations/guide-to-data-protection/ico-codes-of-practice/age-appropriate-design-a-code-of-practice-for-online-services/about-this-code/">Age-Appropriate Design Code</a> (the Code) regulate children’s experience online in the U.S. and the UK, respectively. In fact, in recent months, U.S. senators have <a href="https://www.markey.senate.gov/news/press-releases/senator-markey-reps-castor-and-trahan-press-major-tech-companies-to-extend-online-protections-required-under-a-new-uk-statutory-code-to-children-and-teens-in-the-united-states">urged</a> tech companies to apply the UK’s code to products accessed by American children. The Code contains 15 individual standards that must be met in order to be compliant, including restrictions on nudge techniques, data minimization requirements and setting profiling to off by default. Additionally, some of our clients have received inquiry letters from the Information Commissioner’s Office (ICO), the UK’s privacy and advertising regulator, addressing compliance with the Code. Note that the Code was created as a regulatory extension of the UK’s Data Protection Act (UK DPA), a law very similar to the EU General Data Protection Regulation (GDPR), that was passed in the midst of the UK’s departure from the EU and European Economic Area (EEA). Both the GDPR and the UK DPA take special considerations when it comes to minors’ privacy and online protection.

In the U.S., COPPA sets out clear guidelines for the ways brands may interact and advertise to children. Additionally, the Children’s Advertising Review Unit (CARU), an arm of the BBB National Programs, can bring cases against organizations for improper advertising to children and refer cases to the Federal Trade Commission (FTC), which enforces COPPA as well as Section 5 of the FTC Act, regulating unfair and deceptive business practices.

Regulators in the U.S. use several factors to determine whether an online service should follow applicable laws, including the subject matter of the online service, visual content, use of animated characters or child-oriented activities and incentives, music or other audio content, age of models or influencers, presence of child celebrities or celebrities who appeal to children, and child-directed language. In the UK and certain member states of the EU, this determination is looser, and regulators review any online services that are likely to be accessed by children. This standard is similar to, but significantly broader than, the FTC’s continuously broadening interpretation of the application of COPPA, which accounts for an organization’s knowledge of its online service’s popularity among children. Other differences also should be noted, such as the EEA/UK’s differing definitions of what is a minor or child.

With a platform such as Roblox, which features bright colors and animated characters, understanding which laws apply and to what level of risk can be a nuanced assessment. This assessment and what risk mitigations organizations can take in advertising in the video game space are what we can assist with.

Placing sponsored or branded content in virtual video game worlds can be an incredible new journey for brands to embark on. Armed with the right power-ups, a brand can successfully leverage its identity in the virtual space and level up.

Contact the authors of this post to learn how to create an effective video game advertising strategy.

Leveling Up: Advertising to Children Through Video Games