Toying with children's emotions, the new game in town? The legality of advergames in the EU

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Abstract

Marketing techniques such as advergames have proven to be an extremely useful marketing tool for advertisers and in particular when targeted towards children. Such techniques allow for the development of a positive product or brand association through the delivery of fun interactive content. As a result, children are no longer merely passive receivers of commercial communications. Instead, they become actively involved in the advertising process. Advergames have a potentially manipulative aspect. Children are often unable to distinguish between the commercial message and the non-commercial content. This has negative consequences when one considers the potentially persuasive nature of marketing techniques such as advergames which can further heighten this confusion.

Moreover, as modern business models are based on data, advertisers are increasingly interested in the personal information of their young customers. Increased computing capabilities mean that commercial entities are now able to profile individual consumer behaviour online and assess how it differs from rational decision-making and to leverage this for economic gain. Such profiles facilitate the targeting of personalised advertisements thereby tailoring marketing campaigns based on children's behaviour. The capacity to collect and process information in addition to the technical ability to personalise consumer services online potentially allows for the triggering of consumer frailty. This has particular importance when one considers the effects of positive emotions, caused by advergames. The purpose of this paper is to examine the legal issues associated with advergames from an EU perspective and, in particular, this advertising technique's capacity to manipulate emotions.

Introduction

In 1977, the US academics Reed and Coalson published an article which tracked the historical increase of emotional appeals in advertising, offered insights into the origins of this gradual adoption and attributed technological development as a key determining factor in its rise. The authors noted that this practice of “emotional conditioning” was potentially detrimental to society and thus challenged the Federal Trade Commission (F.T.C.) “to regulate ‘emotional’ advertising that subconsciously stimulates consumers to purchase generic products which do not vary in their composition or use.”1 Although the importance of emotions and moods has long been empirically established by marketers and investigated by communication science researchers, the legal approach to advertising and emotion manipulation has been somewhat muted. In their analysis, Read and Coalson noted that traditional protections in the context of advertising have focused on deceptive practices and misrepresentations by marketers and that perhaps more modern safeguards were required.2 Although this article was written almost half a century ago its argumentation has retained, if not increased, in importance due to rapid development of internet technologies in recent years and has thus provided inspiration for this paper.

New digital advertising technologies are to a significant extent directed towards a young consumer audience. Marketing techniques such as advergames have proven to be an extremely useful tool for advertisers and in particular when targeted towards minors.3 Such techniques allow for the development of a positive product or brand association through the delivery of fun interactive content.4 As a result, children are no longer merely passive receivers of commercial communications. Instead, they become actively involved in the advertising process and their emotions have become extremely valuable for advertisers.

Previous studies have shown that advergames have become a ubiquitous feature of online marketing practices that target children.5 Such a practice requires a detailed assessment under the scope of the applicable EU legal framework. A primary consideration for all actions taken by public authorities or private institutions in relation to children is the principle of “best interests of the child” contained in the United Nations Convention on the Rights of the Child.6 The principle is key for the assessment of children-related legislation and requires a proper appreciation of the position of the child.

A wide array of legislative provisions regulate advertising to which children are exposed, across various channels. For the purposes of this article the analysis will focus on the e-Commerce Directive, the Audiovisual Media Services Directive, the Data Protection Framework and the Unfair Commercial Practices Directive. Moreover, self-regulatory codes also play an important role in the regulation of online advertising. Indeed, the International Chamber of Commerce has drafted a Code of Advertising and Marketing Communication Practice (Consolidated ICC Code),7 and in many countries self-regulatory bodies observe compliance with the principles of this Code. Furthermore, companies are strongly encouraged by the Unicef Children's rights and business principles to use marketing and advertising that respect and support children's rights (principle 6).8

For the purposes of this paper, the analysis has been restricted to an assessment of the EU legal framework and the specific Directives mentioned above. These have been selected based on the relevance vis-à-vis their substantive and material scope in the context of advergames. However, where relevant, references to US practices are made in order to highlight possible avenues for development and provide comparative forms of analysis. The secondary sources used in this paper were selected based on their material scope and their relevance to the topic.

The article is divided into 3 sections, each representing a level (or layer) of the advergame namely, Level 1 – Confusing the players – Blurred lines, mixing emotions?, Level 2 – ‘Nosey nosey cheeky cheeky, that's my business’ – are children the biggest losers? and Level 3: Game over or rebalancing the rules?

Section snippets

Level 1 – Confusing the players – Blurred lines, mixing emotions?

Advergames present stimulating and motivating content, appealing lay-outs, fantasy-world aspects and gaming elements which are attractive to children.9 Such interactive marketing techniques challenge the traditional boundaries set in the context of conventional advertising and must therefore be assessed in the context of the established legal framework in order to

Level 2 – ‘Nosey nosey cheeky cheeky, that's my business’ – are children the biggest losers?

The advancements in internet technologies have led to the further encroachment on the private sphere. Increased computing capabilities mean that commercial entities are now able to profile individual consumer behaviour online. Such profiles facilitate the targeting of personalised advertisements thereby tailoring marketing campaigns according to consumers' behaviour, including children's preferences and online conduct. Such personalisation however presents clear challenges in the context of

Level 3 – Game over or rebalancing the rules?

From the analysis provided above, it can be concluded that a myriad of provisions apply in the context of advergames, presenting certain legal issues. This jigsaw reflects the complex nature of the area and the various competing interests involved. Having traced the framework, it appears difficult to conclude that advergames in their current form as a mechanism for advertising are de facto compliant. Given their reliance on the merging and blurring of commercial and non-commercial content,

Conclusion: normative potential or an emotional nightmare?

Having pieced together the legal puzzle regulating the use of advergames and highlighting our recommendations for an optimum implementation, it is apparent that these marketing techniques stretch the capacity of the legal protections to the limit. Due to the mix of commercial and non-commercial content, advergames inherently allow for the creation of confusion amongst consumers and, in particular, children. Moreover, due to the developments in technology, computing capacity now allows for the

Acknowledgements

The authors would like to sincerely thank Chris Hoofnagle for organising PLSC Amsterdam and those who attended the workshop dedicated to this paper in an earlier form. In particular the authors would like to thank Kathryn Montgomery for volunteering to lead the session and providing such insightful comments and positive recommendations. Finally, the authors would like to thank Eleni Kosta and Maarten Truyens for their helpful feedback.

Valerie Verdoodt's and Eva Lievens' contribution for this

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