1. The game is on! A critical assessment of the legal compliance of advergames directed at children
Valerie Verdoodt
Damian Clifford
Eva Lievens
International Summer School on Cyber law, 6-10 July 2015, Moscow

2. Introducing the AdLit project
Advertising Literacy in a New Media Environment Investigating Minors’ Persuasion Knowledge in Relation to New Advertising Formats
Various Stake-holders
Yesterday, one of the hot topics that was mentioned during our first session was the topic of targeted advertising. Nowadays, we see that advertisers become ever more inventive in their advertising techniques and this may raise significant questions in relation to Minors and children.
As such, AdLit is a research project studying minors’ advertising literacy regarding new formats of advertising.
It is an interdisciplinary project, where communication scholars, pedagogy and marketing researchers and at we are responsible for the legal work. (Mapping the legal framework, not just for Belgium but also European and International elements are taking into account. Mapping self-Regulation and finally analysing whether this framework is still applicable for new advertising formats.

3. New advertising formats aimed at minors
→ increased blurring between advertising, information and media content
→ significant societal impact
→ contrary to specific legal requirements ?
--Due to technological advantages, new digital media and new advertising forms are emerging often fully embedded into media content, interactively engage users with the commercial content and have extended advertising goals (e.g., incite users to share content). This makes it more difficult for inexperienced consumers, such as minors, to understand the commercial intent.
--studies show that minors often do not recognize or understand the persuasive intent of these new formats  vulnerable target group.
--overwhelmed by an increasing amount of commercial messages.
--important target group for advertisers and marketeers. Minors have become an integral part of consumer culture.
It is important to look at the legal issues.

4. Advergames
Advergames are free online games that are created to promote a brand or brands from a specific advertiser. In these games, persuasive messages are embedded into entertaining and oftentimes immersive content, masking their persuasive nature. (Van Reijmersdal)
One specific example of such advertising are advergames.
First, the embedding of a product or brand to be advertised within non-promotional media content (i.e. the game
Interactive nature of the means of advertising. This advertising technique has been referred to as “advertainment” as it invites users to actively engage with the commercial content.
Previous studies have shown that advergames are incorporated in 63% to 85% of company websites that feature special areas for children. Advergames can be accessed through various platforms. For example company websites, social media and mobile applications are being used as a means of delivery.
→ increased blurring between advertising, information and media content

5. Advergames Advertising content embedded in the non-promotional content
→ particularly appealing to children
→ positive product or brand association
→ potentially manipulative aspect ?
So first of all, in relation to the embedding of the commercial message into the non-promotional message:
Particularly appealing to children: motivating content, appealing lay-outs and fantasy-world aspects
Positive brand association: through the delivery of fun interactive content
Potentially manipulative aspect: Children are often unable to distinguish between the commercial message and the non-commercial content. Particularly for younger children, their ability to engage with advertising in a critical manner is less developed. The creation of positive moods  persuasive effect of the advertising technique increases.
Ethical/legal issues

6. Advergames
The collection of children’s personal data through advergames
→ profiling individual consumer behaviour online
→ personalisation of content
→ increase manipulative nature of advergames
A second big issue relates to the collection by advertisers of children’s personal data through advergames. Research has shown that up to 79% of websites addressed to children collect their personal data. And even up to 87% of the websites to youngsters. In particular name, address, address, phone, mobile phone and even data of third parties are requested.
--Increased computing capabilities mean that commercial entities are now able to profile individual consumer behaviour online and assess how it differs from rational decision-making and to leverage this for economic gain.
--Such profiles facilitate the targeting of personalised advertisements thereby focusing marketing campaigns on children’s behaviour. In the context of advergames this may result in the personalisation of content (i.e. the targeting of certain games/products towards identified children), which gives rise to certain ethical concerns.
--Moreover, such practices can further increase the manipulative nature of advergames. The potential capacity to personalise, the link between positive moods and the effect of an advertising campaign raise clear legal-ethical issues. The more personal such pages, the more effective they become.

7. Applicable legal framework
Children’s fundamental rights ‘Best interest principle’ → balancing act Advertising rules – it’s complicated Audiovisual Media Services Directive → principle of separation (art. 9(1)(a)) Consumer Protection → based on the average consumer test
1) Children’s fundamental rights: In the context of data protection, this principle means the appreciation of the position of the child and demands an adequate protection of children’s privacy and personal data, by giving effect as far as possible to these fundamental privacy and data protection rights. balancing act. Indeed, there may be conflicting interests at play, this balance is potentially challenged in the context of advergames.
2) Advertising rules: the AVMSD provides important rules for advertising aimed at minors in the EU. There we have the principle of separation, which requires a clear distinction between commercial and non-commercial content. However it is uncertain whether this is applicable to advergames as one of the Recitals (22) exludes games from its application but not advergames per se. This Directive is currently under review so it will be interesting to follow up on this. Recent advocate general opinion that it is not applicable to anything but television
3) Consumer protection: : Unfair Commercial Practices Directive - EU rules on misleading advertising and aggressive selling practices. According to this Directive, some commercial practices are considered unfair and may mislead the consumer or approach him or her aggressively. The benchmark here is the average consumer of a certain group, here minors. (who is reasonably well-informed and reasonably observant and circumspect). For instance, this Directive states that : (2) practices using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (misleading commercial practices)

8. Applicable legal framework
Data protection legislation Legitimate ground for processing → consent ? Right to be informed → but complex privacy policies that no one reads Self-regulation International Chamber of Commerce → effectiveness ?
The collection of personal data has become the key business model of many online companies. The increasing computing capabilities mean that this collection increases the effectiveness of marketing campaigns. At the moment, the main instrument regulating the processing of personal data at the European level is the Data Protection Directive, which dates back to 1995
1) Consent: In sum, when advertisers want to collect personal data of children through advergames they will need to ensure that the manner in which they obtain consent is well-considered and takes into account the vulnerability of a child and its capacity to understand the consequences of the consent that is given. Furthermore, when the child has not reached a satisfactory level of understanding of such consequences, parents will need to be involved in this decision. In practice, the increasing use of personal devices by children, such as tablets and smart phone, will undoubtedly complicate this parental consent. How can it be guaranteed that consent stems from the legal representative of the minor in question? The new General Data Protection Regulation does not foresee any clarification.
2) Right to be informed: . In practice, this implies that towards children or their legal representatives, information needs to be presented in a simple, concise, readable and educational language that can be easily understood and is adapted to the age of the individual in question. However, in practice this doesn’t happen, see the lenghty privacy policies that no one reads, especially not children.
3) Self-regulation: Code Advertising and Marketing Communication Practice (Consolidated ICC Code), and in many countries self-regulatory bodies observe compliance with the principles of this Code. In sum, these principles are rather abstract and echo the obligations laid down in legislative instruments. However, the added value of this self-regulatory framework lies in the fact that citizens can also submit complaints about non-compliance of certain advergames to their national self-regulatory bodies. However, this of course requires that these bodies function effectively and that they have some powers to sanction non-compliance.

9. Recommendations
→ Map the different legal frameworks and overlaps in the context of advergames → Clear, practical guidelines for ‘verifiable (parental) consent’ → Increase advertising literacy through innovative ways of providing information (e.g. layering, participatory design, labels or cues)
As we are only in the first year of our research project, we are still mainly working on the mapping of the legal framework and its barriers. However we did find certain preliminary potential solutions and recommendations that I would like to share with you.
--Map the different legal frameworks and overlaps in the context of advergames: this is what we are currently doing with the legal framework and in the next year the self-regulatory framework.
--Guidelines: Therefore, clear guidelines need to be established as soon as possible for the practical implementation of verifiable parental consent and the means of verification. Research needs to be carried out to decipher whether these methods are able to distinguish between ages and the further use of the collected data, be it internal or external.
--AdLit: e.g. layered privacy notices, an age-appropriate format. Use of participatory and co-design methodologies can support and guide the process of designing more user-centric legal communication (e.g. legal design jams, workshops with children)
Labels or cues that indicate the commercial nature of an advergame and enhance transparency about commercial motives. However, their development would need to take into account various elements, such as cross-media use (uniform labels across different techniques), adoption processes by users or viewers, specific cognitive characteristics and levels of advertising literacy of specific user groups (such as minors) and regular monitoring of efficiency.

10. Thank you Valerie.verdoodt@law.kuleuven.be