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We talk to lawyers about the No Man's Sky false advertising investigation
To better understand the potential consequences of the UK's Advertising Standards Authority's investigation into No Man's Sky, we reached out to a number of legal experts proficient in the realm of video game law for their take on the situation. Stephen McArthur, a "Video Game Lawyer" of McArthur Law Firm, Ryan Morrison of Morrison Lee, Jas Purewal of Purewal and Partners LLP, and Tom Buscaglia, The Game Attorney, agreed to lend us their knowledge and explain what this investigation could mean for Hello Games, Valve, and the industry as a whole.
What's the ASA, and what power does it have?
The ASA is an independent authority with the power to issue, but not enforce, sanctions on advertising that breaches the UK Advertising Codes. As such, its judgments are not legally binding, and it is up to the offending company as to whether it follows the ASA's recommendations.
The law on false advertising in video games is developing fast, particularly over the last few years, Purewal tells us. He points out that many recent cases in the US have been unsuccessful,
The No Man's Sky claims, though, aren't so easily defined, and that's where Aliens: Colonial Marines serves as the most instructive example. Morrison highlights the fact that the Colonial Marines case was reduced from a class-action suit to one representing only the two plaintiffs, a ruling made due to the difficulty of proving which players had purchased the game based solely on its false advertising, and which had picked it up for other reasons.
It's a similar case for No Man's Sky. Of the claims the ASA is investigating, how many people bought NMS purely on the basis of it having flowing rivers? How many copies were sold on the ability to fly close to the ground? Was the promise of bathing wildlife a deciding factor for a significant chunk of the audience?
Given how impractical it would be to prove any of these claims, it's highly unlikely the ASA will advise any sort of blanket refund or remuneration. Morrison suspects something more along the lines of a strongly-worded warning advising Hello Games to be more mindful with its marketing in the future. Purewal expects much the same, pointing to the settlement between the FTC, Microsoft, and Machinima over paid endorsements on YouTube. "The impact on the consumer is indirect," he says. "They may not see ads in a particular way done again."
Morrison doubts that it will have much impact, even if the ASA concludes that players have been misled. "Under American law, I don't think they've broken the law," he tells us. Rather, he attributes the frustration and disappointment surrounding No Man's Sky to a misinterpretation of the marketing material. Videos and screenshots depict the ideal planets, the ideal wildlife, the ideal experience—and that's not necessarily what everyone's going to get. Procedural generation is inherently unpredictable; no trailer could equally represent 18 quintillion planets' worth of content in just two minutes.
Morrison also points out that, in legal terms, any comments made by Sean Murray in interviews or in Reddit AMAs are not considered advertising. Claims made in these forums do not fall under the official marketing umbrella, and as such do not hold up in a legal context. Any hypothetical lawsuit would be limited to the media distributed by Hello Games as a whole.
After restating his belief that Hello Games has neither broken the law nor purposely deceived any of its players, Morrison closes with a piece of advice it's always worth reiterating: "People need to stop pre-ordering games." If you aren't 100-percent confident you know what you're getting, give it a week before handing over your hard-earned cash. Watch Let's Plays. Read the reviews. A little research goes a long way.
A web page on store.steampowered.com, seen in September 2016, for the game ‘No Man's Sky’. Under the title, text stated "No Man's Sky is a game about exploration and survival in an infinite procedurally generated universe". The page contained two videos of gameplay and 11 screenshots showing game features, as well as an extended text description of the game, part of which stated “Fly smoothly from deep space to planetary surfaces, with no loading screens, and no limits … Trade convoys travel between stars, factions vie for territory”.
Twenty-three complainants, who believed that some of the game content was not as depicted or described, challenged whether the ad was misleading.
We understood that the screenshots and videos in the ad had been created using game footage, and acknowledged that in doing this the advertisers would aim to show the product in the best light. Taking into account the above points, we considered that the overall impression of the ad was consistent with gameplay and the footage provided, both in terms of that captured by Hello Games and by third parties, and that it did not exaggerate the expected player experience of the game. We therefore concluded that the ad did not breach the Code.
We investigated the ad under CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.7 (Substantiation) and 3.11 (Exaggeration), but did not find it in breach.
No further action required.