To better understand the possible consequences of the investigations of the Commission on advertising standards the United Kingdom (ASA) regarding No Mans Sky, we turned for advice to the experts on legal issues in video games. Our advisers were “video game lawyer” Steven McArthur of McArthur Law, Ryan Morrison from Morrison Lee, Jas Purves of Purewal and Partners, as well as Buscaglia, aka blogger The Game Attorney. They agreed to share the secret knowledge and explained what the investigation may turn out to Hello Games and the industry as a whole.
ASA — an independent Commission is able to impose sanctions on companies that violate advertising laws in the UK, but is not able to compel the execution. That is, whatever decision the ASA has adopted, by law no one is obliged to follow its provisions, so that the final decision rests with the firm that is the target of the investigation. However, in the past the ASA has already demonstrated its power. After the incident with the advertising slogan “FCUK”, the Commission forced the company French Connection to send her all advertising materials prior to publication.
Also in 2008, ASA blocked the iPhone is due to submission of false information about the abilities of the Safari browser. Purvis notes that recent legislation in matters of video game marketing is developing by leaps and bounds. However, he drew attention to the fact that the latter claims to “unscrupulous” companies in the United States have not been successful.
For example, a class action regarding the inaccessibility of the multiplayer mode of GTA V game launch. In the past ASA has already made recommendations regarding advertising for Wolfenstein. The New Order as well as for the mobile game Dungeon Keeper.
The Commission decided that the company Electronic Arts, the publisher of Dungeon Keeper, should have mentioned in email that some of the advertised functions of the game are not free and available only to those users that paid for them, although in an e-mail list about it nothing was reported. The ASA found that EAs actions violate British advertising legislation, and demanded the abolition of distribution and also recommended the company in the future is to pursue a more clear distinction between the paid and free aspects of the game. MacArthur recalls a few important examples. These cases occurred in the United States and by law have no power over the decisions of the ASA.
But they are very similar to what is happening with No Mans Sky, and Hello Games and can clearly demonstrate what can be considered false advertising and what not. In 2013, the buyers of the game have filed a lawsuit against the companies Sega and Gearbox. In 2015, Gearbox has been removed from the list of defendants, and the case itself ceased to be a class action. However, ASA still forced Sega to admit that the trailers “did not accurately reflect the actual gameplay elements”.
In the end, the publishing company agreed to pay $1.25 million to the court and to plaintiffs, and to place in the trailers the warning that they show a gameplay demo, not the final product. In 2015, the US Federal court dismissed the case against Sony, arguing that the evidence was not sufficient to accuse the company of false advertising. Initially, the plaintiffs claimed that the game Killzone.
Shadow Fall is not running at 1080p, although the trailers have shown the opposite. However, the court ruled that due to the technical implementation of graphics, the difference between the promised and actual product is not big enough to accuse Sony of false advertising. According to the court, Nvidia agreed to pay $30 to everyone living in the United States to the purchaser of the graphics card GTX 970.
The company argued that it did not purposely deceive buyers by saying that the card contains 4GB of VRAM. On its assurances, engineering and advertising Department just didnt understand each other. As you can see, the cases with Killzone and Nvidia is quite simple from a technical point of view. Pretty easy to determine what is 1080p and what not, because a 1080p set standard.
Also there is a real difference between 4 GB of GDDR5 RAM and 3.5 GB of GDDR5. When it is about real facts and figures to determine which may be considered false advertising, it is not difficult. However, the case with No Mans Sky is not so simple, and the closest example is the game Warhammer online. Colonial Marines.
Morrison recalls that the statement to Sega was transferred from the category of class actions, after which the court began to address only two of the plaintiff. This decision was taken because no one can accurately determine who of the players bought the game because of the advertising that he had been deceived, and who for some other reason. About the same problem and stands in front of the ASA in its investigation regarding No Mans Sky. The Agency should establish what number of players bought No Mans Sky for the missing rivers there, the possibility to fly close to the ground, of multiplayer or the rich fauna of the planets.
As you understand yourself, try to answer these questions is almost meaningless. It is highly unlikely that ASA will recommend Hello Games a refund for the copy of No Mans Sky or compensation. Morrison suggests that the Agency will only alert the company and will require in the future be more careful with their own is.
Purvis also expecting something like that, and cites the example of a lawsuit the FTC to Microsoft and Machinima about a sponsored promotional video. “Such cases are not to the consumers directly. However, perhaps in the future we will not see such misleading advertising,” he says. Purvis also reminds that the decision of the ASA to nothing obliges the Executive authorities of other countries.
Morrison doubt that there will be something important, even if the Agency decides that Hello Games cheated players. “From the point of view of American law, the Studio did nothing wrong,” he says. He believes that the players themselves misunderstood promotional material and upset solely because of this.
Trailers and screenshots show the perfect planet with the perfect nature, which can see not every player. Procedural generation is unpredictable by its very nature, and no the movie will not be honest for two minutes to show what is going on 18 trillion planets. And Buscaglia, Morrison noted that it was difficult to display all of the planet, created by the method of procedural generation, only a few videos and screenshots. At the same time, players can not choose which planet they reach and each of them will get a completely different product.
Someone will fly with one blossom and live planet to another, and someone will only see the dead dried-up worlds and did not find anything that was advertised in the trailers. However, in this case, you cant just blame Hello Games in false advertising, because the trailers should advertise the best aspects of the game. It is important to separate the probability of confidence.
If the probability to stumble upon a great shown on the page of the planet small, but they nonetheless exist, then there is no false advertising. As Morrison told. “Players have a reason to complain, but from the point of view of the law Hello Games did nothing wrong”.
By law, the answers to the questions on Reddit from the Creator of No Mans Sky Sean Murray are not is. Everything said on these forums on the Internet in General has nothing to do with official marketing, and the law is completely powerless. If will be filed any lawsuit, the court can not take into account anything other than the official advertising. Buscala more worried about the fact that such dissatisfaction players may alienate the developers from the idea of procedural content generation in principle.
“It really bothers me that such an angry reaction may scare the really good developers that work with the procedural generation and try to make something awesome. It saddens me to think that people who labor and sweat to bring into the world something revolutionary, so ill-treated those for whom they are trying,” he says. MacArthur anticipates a similar outcome, and said that in future companies will have to get serious about advertising and try not to invest in the trailers, which the players can not see.
Morrison believes that Hello Games didnt break the law, and not even tried to deceive the players on purpose. But he does give the advice that it will not hurt to repeat. “People need to stop pre-order games”. Indeed, if you dont have absolute confidence in the product, it is wise to wait a week after the game before making a purchase decision.
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