Explained

What’s the basis for these standards?

Some, such as the suggested wording of the disclosures and proximity to other information, are straight from the CAP guidance. Others are derived from ASA casework.

However, there are some questions about whether the standards set out in the Enforcement Notice and matching advice article are fully supported by the ASA casework and whether those resources completely align with the CAP guidance.

Prominence

The CAP guidance is clear that disclosure “does not need to be especially prominent,” just that it should be ‘easily accessible and straightforward to find’. The CAP guidance says that loot box disclosure is material information because some consumers may specifically want to avoid games with loot boxes and it would therefore affect their decision to download or make other related decisions (that’s pretty much the definition of material information). Material information can’t be omitted or obscured, including by being provided in an unclear or untimely way, but that doesn’t necessitate a high degree of prominence in and of itself – hence the ‘easy and straightforward’ requirement.

However, the Enforcement Notice states that the disclosure must be “in a prominent location.” The rulings linked to illustrate this (here and here) establish that the itemised list of in-game items (which did not refer to loot boxes) is insufficiently prominent and that the disclosure should not be below enough text to require scrolling.

As such, it’s hard to know what a “prominent location” means in practice and, crucially, whether this would match the broader approach in the CAP guidance.

‘About’ sections and long descriptions

Related to this, the Enforcement Notice says that consumers shouldn’t be expected to expand an ‘about’ section (these usually have the first line or two visible, often with a very high-level description of the game, with consumers needing to actively choose to see more) or to read through several paragraphs of a description.

However, the main case used to illustrate this (the other two related to listings that didn’t mention loot boxes at all) is more equivocal and ambiguous. It acknowledges that the ‘about’ section needed to be expanded, notes that scrolling was required, and says “we considered the information was not prominent within the app’s long description […] consumers would need to read through the full text to find it” and “it was too far from the main call-to-action and not visible at the point consumers were likely to decide whether to download the app, even after expanding the description.” It’s not actually clear from this whether the expansion of the description is a problem in and of itself, or whether it’s ok to put a statement in the expanded text as long as it’s the first thing you see.

Part of the problem over the uncertainty is to do with whether it meets the rationale of the CAP guidance’s disclosure requirement – that for some consumers it may be material information needed to make an informed decision (pretty heavy on the caveats). Given that a consumer who wants to avoid loot boxes will specifically be looking out for that information, it seems disproportionate to imply that it should take the place of the customary “A rogue-like match-3 merge game about capybaras and flapjack” line that’s usually the always-visible part of the ‘about’ section. Sure, it shouldn’t be buried a mile deep, but there’s a middle ground there. Indeed, the description of the game could be significantly more material for more people than the loot box disclosure.

Because of this, it’s hard for video games companies to get a full picture of what they need to do to comply, and this may lead to misunderstandings on both sides that risks ‘overcompliance’ with the CAP guidance (potentially to the disbenefit of consumers).

Proximity of loot box disclosures

The CAP guidance requires that loot box disclosures are either next to or part of the broader in-game purchasing disclosure, which makes sense. However, it’s a pretty tricky situation with not much ASA casework to go on.

It was ostensibly drafted on the assumption that it would be straightforward to do this, and most of the time it is, especially if you’re whacking a footnote on a display ad. But on some online stores the interface that allows in-app purchasing disclosures to be automatically added does not extend to loot boxes. This makes it impossible for the loot box information to be with/in the built-in purchasing disclosure. Ah.

To its credit, the Enforcement Notice states “If this information cannot be presented using a built-in disclosure label, it should be manually incorporated, as per the guidance above,” but the ASA case to illustrate it is the same itemised-list-with-no-loot-box-reference one as above – it restates the CAP position but doesn’t expand on how it actually applies to the ad. Without solid precedent it’s hard to know whether it’s ok for the built-in label to be incomplete as long as they’ve manually incorporated a disclosure elsewhere, or whether the presence of an incomplete label is a breach regardless of information placed anywhere else.