Italian Antitrust Authority proceedings lead to binding commitments on misguiding “free” apps
On 30 January 2015 the Italian Antitrust Authority, in accepting commitments made by the parties, closed infringement proceedings relating to allegedly unfair commercial practices carried out by Gameloft, iTunes, Google and Amazon. These practices involved the distribution of an app called “Littlest Pet Shop” (a mobile videogame, designed mainly for children) that, although at the time of download was publicised as free, required subsequent payments to fully enjoy all its features.
Specifically, the unfair commercial practices under scrutiny concerned inter alia: the provision of deceptive or otherwise insufficient information about the real costs of the full exploitation of the app and the ambiguous presentation of relevant information (essential for the average consumer to make conscious commercial decisions) on the existence of purchasing offers within the gameplay. According to the Italian Antitrust Authority these conducts would clearly infringe the provisions of the Italian Consumer Code, as “contrary to professional diligence and suitable to appreciably distort the consumers’ economic behaviour“.
However, during the investigation, Gameloft, Google, iTunes and Amazon provided the Authority with specific proposals to remove the unlawful element from the commercial practices at issue, as provided for under Article 27 (7) of the Italian Consumer Code.
Gameloft’s proposal was somewhat different, though closely linked, to those indicated by the other parties: this is because Gameloft, as well as being a distributor, is also the developer of the app in question. Gameloft committed not to use, for this kind of game, invitations to purchase that could take advantage of the user’s emotional reactions, and to introduce comprehensive information, including a tutorial. In this way, the provision of “in-app” purchases, made in “virtual currency” (in turn obtained by paying with real currency) would be made evident to the consumers.
The online store owners (mere distributors) committed instead to: cease using words such as “free” and “gratis” — replacing or integrating them with the necessary clarifications, depending on the platform — to define apps that can be obtained without the payment of an initial price, but still allow in-app purchases; expressly indicate that an app includes in-app payments and the related range of prices; and to grant consumers, at the time of the app’s first purchase or for purchases made within it, with the possibility of regulating the approval of subsequent payments by entering a personal password.
After a careful assessment of these proposals, considering also the stated intention of the parties to apply the measures proposed to all apps, not just the one in suit, the Authority decided to accept them, and so to make them binding on the parties. The Authority found that following the implementation of these proposals, the average consumer would be able to understand that the apps they download include content that is only available subject to payment in the form of an in-app purchase. The Authority decided, accordingly, to close the proceedings without ruling on the infringements in suit.