By its decision no. 28368 of 30 September 2020 the Italian Competition Authority (ICA) accepted the commitments made by Electronic Arts Inc, Electronic Arts Swiss Sarl and Electronic Italia Srl (EA group) and closed without ascertaining any infringement the proceedings regarding the promotion in the Italian market of several videogames that offer the possibility to make in-game purchases including through loot boxes.
The proceedings at issue were initiated after several consumer associations highlighted concerns about the promotion and sale in the Italian market of the popular videogames FIFA 19, FIFA 20, Star Wars Battlefront II and Apex Legends. In particular, these videogames offer the possibility to make in-game purchases, i.e. purchases with real money that allow the gamer to obtain various game items, such as guns, special moves, special characters or aesthetic or choreographic improvements of the in-game characters. A specific category of in-game purchases consists of the loot boxes, which allow the gamer to randomly obtain an unspecified game item that in some cases may influence the game performance.
In relation to these videogames, the ICA noted the spreading through the EA group websites of misleading information regarding the features and the costs involved for the in-game purchasing, even when children and adolescents can use such games. In fact, according to the ICA, the EA group websites did not clearly report from the very first contact with the prospective buyer the information that the videogames include in-game purchases. In addition, the free-to-play videogames (e.g. Apex Legends) were presented as totally free although they still provided in-game purchases without precisely indicating the presence of this feature.
These conducts were considered capable of deceiving consumers with regard to the characteristics of the videogames and the effective costs for their enjoyment. Moreover, the lack of information prevented parents from making an informed purchase and supervising the activity of their children
Finally, the AGCM found that the pre-contractual information provided to consumers on the right of withdrawal and its possible exclusion during the videogame purchase process was inadequate.
The ICA therefore contested the possible violation of articles 20, 21 (1) (b) and (d), 22, 26 (e), 49 (h) (m), 52, 54 and 59 of the Italian Consumer Code as the conducts at issue were contrary to professional diligence and capable of distorting the consumers’ economic behaviour and hindering their contractual rights in relation to the promotion and the sale of videogames.
However, the ICA did not find it necessary to take action against the EA group, having received by the latter a proposal of commitments to remedy those infringements. In particular, the EA group undertook to:
- Insert in the game description’s web pages and in the game purchase’s web page, near the “buy now” button, the last version of the PEGI symbol, accompanied by the words “in-game purchases” or “in-game purchases (contains random elements)”;
- Increase the size of the PEGI symbol by 66%;
- Insert in the game description’s web pages the wording “this game includes the possibility to purchase a virtual currency with real money to be used to purchase virtual game items, which could also be attributed through a random selection”;
- modify the information already provided to consumers regarding the right of withdrawal, in order to clearly indicate the withdrawal process and its limitations pursuant to the Consumer Code;
- insert a spending limit of € 0 for online purchases as the default setting for the “teenager” account (16-18 years), thus reducing the previous limit set at € 25. This limit can only be changed through a conscious choice by the parents, by connecting their account to the “teenager” account.
In this regard, the ICA preliminarily stated that those commitments shall be assessed in the context of the recent commercial trend regarding the introduction of in-game purchases and loot boxes in videogames. The in-game purchases, the ICA continues, constitutes a significant source of revenue for the business operators.
In this respect, given that the videogames are also intended for “vulnerable users”, such as children and adolescents, «who may not have a clear awareness of the economic and psychological mechanisms of the in-game purchases, maximum clarity and transparency is required for consumers and parents about the possibility of making such purchases». This is particularly true, the ICA continues, in relation to the videogames that include in-game purchases through loot boxes, in which randomness is the characterising element of the purchase.
Therefore, the ICA found that the EA Group’s commitments sufficiently address the unfair practices previously identified, as the proposed measures provide consumers with clear and precise information on the characteristics of each purchase, especially with regard to the fact that the use of the game may involve making payments in the form of in-game purchases or via loot boxes.
 The Pan European Game Information (PEGI) is a video game rating system based on the age of the gamer that includes five age categories and nine content descriptions (eg “violence”, “bad language”), accompanied by specific pictograms.