Elad Botwin


The video game industry is rapidly growing and reaching more people, adults and children alike, across the world. There have been only a handful of legal actions regarding deceptive trade practices by companies in the video game industry. There has been only one government ruling that has substantively reviewed a game over representations regarding its features - the United Kingdom's Advertising Standards Authority (ASA) ruling on the game No Man's Sky in November 2016. The dearth of legal action in this area and the shortfalls in the ASA investigation boil down to a fundamental lack of rules and guidance for determining materiality for products with many distinguishable features. This issue exists because the video game industry poses a novel situation in which games sell on a multitude of features that consumers each consider when deciding whether to purchase games. Accordingly, a game with many misleading representations about various features may not be material simply because no individual misrepresentation alone is important enough (not material) to a consumer's overall purchasing decision, despite consumers decrying the misrepresentations. Therefore, this article proposes the creation of a materiality test that will enable plaintiffs and regulators to delve into individual misrepresented features of a game, sort them, and evaluate them together for materiality based on the overall net impression presented to consumers. Consumers look at the overall product and consider most features advertised to make their purchasing decisions - the law should follow a similar perspective for scrutinizing video games for deceptive practices and advertising.

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