Getting under your skin(s): a legal-ethical exploration of Fortnite's transformation into a content delivery platform and its manipulative potential*

This article investigates the ethical and legal implications of increasingly manipulative practices in the gaming industry by looking at one of the currently most popular and profitable video games in the world. Fortnite has morphed from an online game into a quasi-social network and an important cultural reference point in the lifeworld of many (young) people. The game is also emblematic of the freemium business model, with strong incentives to design the game in a manner which maximizes microtransactions. This article suggests that to properly understand Fortnite's practices – which we predict will become more widely adopted in the video game industry in the near future – we need an additional perspective. Fortnite is not only designed for hyper-engagement; its search for continued growth and sustained relevance is driving its transformation from being a mere video game into a content delivery platform. This means that third parties can offer non game-related services to players within Fortnite's immersive game experience. In this paper, we draw on an ethical theory of manipulation (which defines manipulation as an ethically problematic influence on a person's behaviour) to explore whether the gaming experience offered by Fortnite harbours manipulative potential. To legally address the manipulative potential of commercial video game practices such as the ones found in Fortnite, we turn to European data protection and consumer protection law. More specifically, we explore how the European Union's General Data Protection Regulation and Unfair Commercial Practices Directive can provide regulators with tools to address Fortnite's manipulative potential and to make Fortnite (more) forthright.

Oversized Area Indications on Bonus Packs Fail to Affect Consumers’ Transactional Decisions—More Experimental Evidence on the Mars Case

Findings from behavioural research are gaining increased interest in EU legislation, specifically in the area of unfair commercial practices. Prior research on the Mars case (Purnhagen and van Herpen 2017) has left open whether empirical evidence can provide an indication that this practice of using oversized indications of additional volume alters the transactional decision of consumers. This, however, is required to determine the “misleadingness” of such a practice in the legal sense as stipulated by the Unfair Commercial Practices Directive 2005/29/EC. The current paper closes this gap by illustrating how behavioural research can inform legal interpretation. In particular, it extends the previous research in two important ways: first, by examining the actual choice that people make; and second, by investigating whether the effects remain present in a context where a comparison product is available. Yet, while supporting and extending the findings of the study from Purnhagen and van Herpen (2017) on deceptiveness, the current study could not produce empirical evidence of a clear influence on the transactional decision of consumers, in the way “UCPD” requires.

Consumer Protection in the Cloud

This chapter assesses consumer protection in the cloud. The majority of businesses seem to have recognised the EU consumer rights regime as setting out the standards of good business best practice which a good business should achieve, and so reflect that regime in their terms and conditions. But a minority of online sellers and suppliers do not, and because the likelihood of consumers going to court to enforce their individual rights is so low, this minority group is unlikely to mend their ways. This has led to an increased focus on using public law rather than private law to enforce compliance with EU consumer rights. The EU Unfair Commercial Practices Directive (UCPD) forbids misleading practices by businesses, and online businesses whose terms or practices deny the individual rights granted by law to consumers are increasingly facing enforcement action. The current focus is on well-known social media and sharing economy services, because success here sends a strong message to other, less visible, service suppliers. Cloud services are at present low on the list, partly because many consumer-facing cloud service providers are already largely compliant. The consumer service providers who are most at risk are those who are struggling to transition from a 'free' business model to a paid one.

Getting under your skin(s): a legal-ethical exploration of Fortnite's transformation into a content delivery platform and its manipulative potential

This article investigates the ethical and legal implications of increasingly manipulative practices in the gaming industry by looking at one of the currently most popular and profitable video games in the world. Fortnite has morphed from an online game into a quasi-social network and an important cultural reference point in the lifeworld of many (young) people. The game is also emblematic of the freemium business model, with strong incentives to design the game in a manner which maximizes microtransactions. This article suggests that to properly understand Fortnite's practices – which we predict will become more widely adopted in the video game industry in the near future – we need an additional perspective. Fortnite is not only designed for hyper-engagement; its search for continued growth and sustained relevance is driving its transformation from being a mere video game into a content delivery platform. This means that third parties can offer non game-related services to players within Fortnite's immersive game experience. In this paper, we draw on an ethical theory of manipulation (which defines manipulation as an ethically problematic influence on a person's behaviour) to explore whether the gaming experience offered by Fortnite harbours manipulative potential. To legally address the manipulative potential of commercial video game practices such as the ones found in Fortnite, we turn to European data protection and consumer protection law. More specifically, we explore how the European Union's General Data Protection Regulation and Unfair Commercial Practices Directive can provide regulators with tools to address Fortnite's manipulative potential and to make Fortnite (more) forthright.

Interests protected under the Polish law on combating of unfair competition

The article concerns the problem of determining the relationship between the Polish Act on Combating Unfair Competition of 1993 and the Polish Act on Combating Unfair Market Practices of 2007. The problem arose when the Unfair Commercial Practices Directive was implemented in the Polish system in 2007. The Directive is based on the division, which was not known in the Polish Act on Combating Unfair Competition, relating to business-to-business (B2B) and businessto-consumer (B2C) relationships. The adoption of such an artificial division has raised numerous problems of interpretation. A better solution would be to adopt in subsequent legislative works the criterion of protected interests, which are the basis of each of the analysed legal acts. Consequently, it will be necessary to introduce legislative changes to the Polish Law on Combating Unfair Competition.

Addressing aggressive commercial practices: Some critical aspects of its regime in the Unfair Commercial Practices Directive

Aggressive commercial practices are a type of conditioning factor imposed by businesses on consumers to modify their freedom of choice. Today, no-one is in any doubt about the financial and social impact aggressive commercial practices can have on consumer wellbeing. In fact, this type of unfair practices has caused, and continues to cause, significant damage to the interests of consumers, as evidenced by the financial crisis which has recently beset Europe. Aware of this problem, European institutions have made consumer protection from unfair commercial practices a priority in their legislative policies. Some of these initiatives have already been in place long enough to allow their results to be analysed (for instance, Unfair Commercial Practices Directive). Others, on the other hand, are still at an early stage (for instance, the New Deal of Consumers legislative proposals), but nevertheless invite reflection. In the light of current trends which argue in favour of greater protection for consumers than has been the case to date, this study will review the European regime of aggressive commercial practices, and analyze the most relevant decisions, especially focused on the financial sector.

4. Article 34 TFEU and Certain Selling Arrangements

This chapter discusses the following: market circumstances rules and Article 34 TFEU; the decision in Keck and its application to cases of ‘certain selling arrangements’; and the ramifications of this ruling, particularly in respect of those rules that did not fit the category of certain selling arrangements and those rules which were non-discriminatory but did hinder market access and the relevance of the Trailers case. The Unfair Commercial Practices Directive 2005/29 seems to have narrowed the areas to which Keck applies still further.

Harmonization of the protection against misleading commercial practices: ongoing divergences in Central European countries

Research background: Modern European integration focuses on competition in the internal single market, embracing both competitiveness and consumer protection, and it aims at full harmonization in this arena. The hallmark, the Unfair Commercial Practices Directive from 2005, aims to overcome diverse social, political, legal and economic traditions. Is the implied protection against misleading practices an opportunity or a threat for Central European Regions? Purpose of the article: The primary purpose is to comparatively describe and critically assess the transposed legal frameworks. The secondary purpose is to study and evaluate their coherence in the light of the case law and their impact in Central Europe, in particular whether it represents an opportunity or a threat for the smart, sustainable and inclusive growth, i.e. boosting competitiveness and innovation along with consumer welfare. Methods: The cross-disciplinary and multi-jurisdictional nature of this paper, and its dual purposes, implies the use of Meta-Analysis, of various interpretation techniques suitable for legal texts and judicial decisions, of the critical comparison and of a holistic assessment of approaches and impacts. Legislation and case law are explored and the yielded knowledge and data are confronted with a field search and case studies. The dominating qualitative research and data are complemented by the quantitative research and data. Findings & Value added: For over one decade, the Unfair Commercial Practices Directive has required full harmonization of the protection against, among other items, misleading commercial practices, by legislatures and judges in the EU. The exploration pursuant to the two purposes suggests that this ambitious legislative and case law project entails a number of transposition approaches with varying levels of coherence, importance and impacts on the competitiveness and innovation of business and consumer welfare in Central Europe. Therefore, full harmonization should be either readjusted or relaxed.

Consumers contracting with other consumers in the sharing economy: fill in the gaps in the legal framework or switch to the blockchain model?

Numerous legal provisions were enacted at an EU level in order to protect consumers contracting with professionals, especially in a digital environment (see, in particular, the protection measures provided by directive 2011/83/EU on consumer rights; directive 2005/29/EC on unfair commercial practices; directive 2000/31/EC on electronic commerce, etc.). With the development of the web 2.0 and the so-called “sharing economy”, consumers are now entitled to easily conclude agreements with other consumers through intermediation platforms. EU Consumer Acquis shall normally be applicable to the relationship between the platform and each of the peers (the seller or the provider on one hand, and the buyer or the recipient on the other hand), with the exclusion of C2C relationships. The objective of this paper is to highlight the potential issues and gaps in the context of consumer protection (lack of information, warranty issues, no right of withdrawal, etc.), resulting from the fact that C2C agreements are normally out of scope of the EU Consumer Acquis (and only governed by the traditional contract law). Some propositions de lege ferenda will also be made, in order to ensure a higher level of consumer protection (with additional legal duties prescribed for the intermediaries, for instance). Blockchain technology and smart contracts shall also be taken into account, since they should normally give rise to a “disintermediation” process. It should however be assessed whether or not consumer protection will benefit from this disintermediation.