ACM imposes fine on Epic for unfair commercial practices aimed at children in Fortnite game
The Netherlands Authority for Consumers and Markets (ACM) has imposed a fine on game developer Epic Games International for using unfair commercial practices aimed at children in its Fortnite game. Companies need to do business with the utmost care, particularly when offering products to children. In its investigation, ACM found that children that played the game could experience pressure in several ways to make purchases, for example by using ads which directly exhort children to make purchases, and by using misleading countdown timers for items on offer. ACM also found that, through various design choices for its offerings in its Item Shop, Epic exploited the vulnerabilities of children. This is in violation of the requirements of professional diligence. ACM has imposed a binding instruction as well as two fines, totaling 1,125,000 euros, on the company.
Cateautje Hijmans van den Bergh, Member of the Board of ACM, explains: “Businesses that offer products to children have a responsibility to keep in mind that children are particularly sensitive to certain incentives. In the popular game Fortnite, children’s vulnerabilities were exploited and were thus pressured into making purchases. With this decision, we are sending a clear signal: children must be able to play online games without being put under undue pressure. These practices by Epic erode confidence in the digital economy.”
What was this case about?
ACM conducted an investigation into the online game Fortnite. Fortnite is a free game, but players are able to make in-game purchases. Such purchases are, for example, cosmetic items with which players are able to customize their ‘characters’ in the game. Purchases are made in the game’s Item Shop. Fortnite is aimed at children, and the game appeals to children. Due to their age, children are more vulnerable to certain commercial practices than are average consumers. ACM has established that, for at least a period of one year, Epic in the game exploited these vulnerabilities through various design choices.
In its investigation, ACM found that, in the game, children were encouraged, through phrases such as ‘Get it now’ or ‘Buy now’, to make purchases. Ads that directly exhort children to make purchases are an illegal aggressive commercial practice, under all circumstances. ACM has therefore imposed a fine of 562,500 euros for this violation.
In addition, ACM found that countdown timers were used in the Item Shop for items that were still available even after the timer had reached zero. Timers create a sense of scarcity. Children were thus put under pressure to make purchase decisions quickly, because they were under the impression that they would otherwise miss out on the items on offer. With these timers, the children’s fear of missing out (FOMO) was exploited, which increases the risk of impulse purchases. ACM finds these types of deceptive timers to be misleading, and therefore imposes another fine of 562,500 euros.
Finally, ACM found countdown timers presented next to items in the Item Shop. ACM’s investigation revealed that those items sometimes disappeared when the timer had reached zero, but sometimes they did not. It was therefore unclear to children whether or not the items they desired would still be available after the timer had reached zero. The offer was complex, and was presented in a way that made it impossible to be able to comprehend the offer, let alone under the pressure of a countdown timer of 24 hours. This use of various design features is characterized by ACM as a ‘dark pattern’. ACM considers this commercial practice to be a violation, because it violates the ‘requirements of professional diligence’. Traders must take into account the fact that children are more vulnerable to certain commercial practices than are regular consumers. Epic actually exploited these types of vulnerabilities. As such, it failed to observe the required care that can be reasonably expected from traders when dealing with children.
In order to force the company to change this unfair commercial practice, ACM imposes a binding instruction that must be implemented before June 10, 2024. Epic must end the violation, and it can do so by reducing the uncertainty regarding the availability of its offerings in the Item Shop, and by extending the decision period for children under the age of 18 years regarding purchases in the Item Shop. Epic has informed ACM of its plans to implement several changes to Fortnite’s Item Shop in order to end the violation. Among other changes, all countdown timers have been removed from the Item Shop worldwide, it now shows the local time indicating when the Item Shop will be refreshed, and, for each item, it will show the date on which that item will disappear from the Item Shop. In addition, Epic has decided to present to players up to the age of 18 years in the Netherlands only items in the Item Shop that will be available for 48 hours or more.
ACM is of the opinion that Epic will comply with the binding instruction if it implements the above changes. These measures break the dark pattern in Fortnite’s Item Shop: it will reduce the time pressure as well as the uncertainty regarding the availability periods of items. In that way, children are better protected against making unwanted purchases. ACM will check after June 10, 2024, whether Epic has implemented all of changes it has announced.