The Annoying Robin Hoods at the Consumer Protection Agency

Courts hand down rulings, but not justice. This phrase ran through my head today as I read a decision handed down by the Federal Court of Justice on July 17, 2013, published just a few days ago (I ZR 34/12). A decision that should prompt some clients to take a critical look at their own advertising tactics. What had happened?

Gameforge, the Karlsruhe-based browser games publisher, had advertised their game “Runes of Magic” as follows:

“Pimp Your Character
Is your character ready for the adventures to come? And does your character have the proper gear?
Thousands of dangers await you and your character in the wide world of Taborea. Without the proper preparations, your last step could be just around the next corner in the dungeon.
This week you have the chance to pimp your character!
Snap up this low-priced offer and give your armor & weapons that certain ‘something’!”

This ad was a call to action for the Consumer Protection Agency to once again play the role of Robin Hood on behalf of the rights of consumers and make the world a noticeably better place. According to the Consumer Protection Agency, Gameforge’s ad is illegal!

Observant readers will now ask: “Okay, I don’t get it. Why is that?”

Well, we don’t know either.
And it is the exact same story for Gameforge and their legal team.
Karlsruhe District Court has also rejected the Consumer Protection Agency’s claim.
Karlsruhe Higher Regional Court has rejected the Consumer Protection Agency’s appeal as well.

The whole situation has become all the more annoying now that the Consumer Protection Agency has found judges at the Federal Court of Justice who share their view of the law. Here’s quick explanation of the legal situation:
There are essentially two rules stipulating that certain advertising practices are prohibited when directed towards children under 14 years of age. One is article 3e, clause 1 (g) of the (European Television Convention Directive 89/552/EEC, amended version) and the other is no. 28 of the appendix to § 3, clause 3 of the German Act Against Unfair Practices (UWG). According to these rules, an ad is considered illegal if it directly asks children to purchase goods advertised or if it encourages them to persuade their parents or others to purchase the goods or services being advertised.

So if a producer advertises a stuffed animal with the slogan, “If your mommy doesn’t buy you this adorable stuffed animal she doesn’t love you”, that would be illegal. It would be just as illegal for a supermarket to place a huge, brightly-colored sign at the checkout counter that read, “Tell your mommy she should buy a surprise egg!” This would constitute a direct appeal to children to purchase the good or prompt their parents to do so.

It is easy to understand why there are limitations on such advertising tactics. The ability to critically scrutinize advertisements is something children and young people must first learn to do. So to prevent difficult familial dramas from happening until children have learned how to deal with advertising, certain limits are imposed on advertisements directed at children. After all, there are children who weep bitterly and throw themselves to the ground at the checkout if the chocolate which is just placed on the counter is not included in the purchase. Whether this is really a matter requiring legislative intervention or if this is a matter that lies with parents is no longer up for discussion because the European Union has already made its decision. The rules exist and the advertising industry simply has to adhere to them.

However, which ads are affected by the limitations is an entirely different question, as is whether Gameforge’s ad directly targeted children to immediately buy their product. The law only mentions “direct exhortations to children”. And it is exactly this that leads us to consider the Federal Court’s explanations to be simply out of touch. The court stated that “the product advertised and the manner in which it was addressed as a whole” in Gameforge’s ad was primarily directed at children under 14 years of age. And here is where the ruling achieved absurdity:

(1) The German language knows two types of the word “you”, a pretty formal one and an informal one. The (original German) version of the ad addressed the reader with the informal “you”. The Federal Court of Justice acknowledged that it has become quite common to use the informal “you” in advertising and that it is even seen when the ad is directed at adults. [FYI: Apple, for example, is using the informal type of “you” in their German advertising.] However, the Federal Court of Justice found that the informal “you” was still a strong indication of children being the prime target audience, because – and here it comes – the reader was exclusively addressed informally.
(2) In addition, the languale of the ad was full of expressions that were typical of children.

Come on, seriously. If an ad addresses the reader informally, it logically follows that the ad has to use this form exclusively. Jumping back and forth between the informal and formal “you” would simply be linguistically inconsistent and would sound weird. As such, the Federal Court of Justice’s first argument is unconvincing.

With regard to the language of the ad, the Federal Court of Justice does not elaborate on which expressions “typical of children” the ad uses. They could be referring to the call for the addressee to “pimp” their character. This term has recently found its way into colloquial jargon through the MTV show “Pimp My Ride” and is used by an entire generation as an (admittedly rather rakish) synonym for “improve”.

It’s safe to assume that a product in the form of a browser game quite simply did not sit right with the Federal Court of Justice. The judges at the Federal Court of Justice must have thought, “Presumably only little children play such games anyway.” Ultimately the Federal Court of Justice noted in its statement that the “product advertised” must also be taken into account. The Federal Court of Justice does not appear to have understood that MMORPGs are usually only satisfying in the long-term, that they require a lot of patience and that they are therefore more likely to be directed at an adult target audience.

Based on the Federal Court’s ruling, we believe that consumer protection agencies will benefit from a tailwind following the decision and will attack suppliers of products directed at a young target audience more aggressively in the future. Other providers of browser games will of course be included here, but so will providers of Free2Play games or game servers. Because of this, direct appeals to purchase, such as “Grab yourself a…”, “Get a hold of…” or “Buy this!” should be avoided at all costs by advertisers. If not, the Robin Hoods at the Consumer Protection Agency will probably be knocking at the door to fight for the rights of children once again.