By Avv. Felix Hofer 1
1. When I came around 'game
advertising' for the first time my attitude as a lawyer, not
necessarily familiar with what I – snobbishly –
considered as basically being "kid's or nerds'
stuff", was obviously extremely skeptic. Running more and more
frequently into articles published on the topic, I very soon had to
realize that this was already a definitely "hot" topic to
a number of industry sectors, involving an incredible amount of
investment as well as offering truly exciting business
According to an interesting US study2, published in
June 2007 on in-game ad spending targeted to digital homes in the
period 2006–2012, companies had already invested 370 mln.
of USD and were expected to increase such figure up to 2.051 mln.
USD in year 2012.
Fairly impressed by the forecast exposed in the US study I got
curious about how feelings would be in Europe about potential
business development with respect to the specific area. Again
surprise, surprise: according to a study performed on behalf of the
EU Commission3 total revenues from on-line content sales
will reach 8,3 bln. on Euro by 2010 (at an increase rate of a
growth of over 400% in five years!) and on-line games will
contribute with a significant share to that quite remarkable pie.
In Fall 2007 another study 4 showed that the Internet
had already become the most popular communication tool among
youngsters aged between 16 and 24; in the specific target group 82%
affirmed to go on-line at least 5 days per week for entertainment
and information purposes, while 46% declared that they preferred
the Internet over (and used it more than) TV.
With the final blow I was provided when I had to realize that
9,8 bln. Euro had been spent for game consoles only during the 2007
Christmas period, that even traditional community venues (as sports
arenas, shopping centers) were arranging specific gaming areas and
organizing new entertainment events (e. g. "disc burn"
sessions) attractive for gamers, that digital platforms did score
important come-backs for popular past-time games and that in France
the gaming sector had surpassed the entertainment industry for the
first time in annual revenues.
2. So, this wasn't exactly a 'niche
area'! It was fairly obvious that this was actually big, big
business and therefore extremely attractive to the advertising
industry for a number of reasons, the most evident ones being
- gaming had definitely developed form a 'lost boys'
domain into a widely accepted 'social activity', not
limited to a young public, but intensely practiced by entire
families and people of all ages,
- gamers did not appear to be disturbed by in-game ads (a
reaction very different from that widespread among the TV
audience), they actually did perceive those ads as relevant for
(and realistic within) the gaming context,
- they were even more eager to accept such advertising when it
reflected positively (through some additional benefit as a lower
sales price) on their game purchase5,
- during recent years dynamic in-game ads had been on a constant
rise compared to static ads (2006, 40% of global spending - 2007,
Furthermore industry enthusiasm appeared widely justified by the
- game play metrics offered an extremely interesting perspective
both, on marketing effectiveness as well as on user habits (just
think of details as: angle/distance of ad views, game pauses,
position changes; not to speak of a truly exciting profiling
potential, where users' in-game behavior can be evaluated and
categorized, e. g. the "dishonest/unfair",
- identical in-side views were available with respect to
demographic targeting (based on the kind of game it's possible
to deliver different dynamic ads to specific audience groups),
while real time placement may easily be performed and consumer
engagement may be achieved (e. g. by combining an on-line ad with
- the opportunities for product placement and cross marketing
appeared to be simply immense.
3. Not much doubt about the attractiveness to
business, but what are the legal implications of this popular new
marketing tool? Well, from a European (more specifically from an
EU) perspective those implications are multiple and somehow
worrying. Let's therefore have a closer look at the provisions
likely to come into play, when in-game advertising is