Vindication for No Man’s Sky as ads on the game’s Steam page are held not to be misleading


January 4, 2017 Leave a comment
No Man’s Sky (NMS) gathered a lot of negative press following its release; the key complaint was the lack of specific features that had been shown in videos posted onto video sharing platforms and social media networks prior to the game’s launch, but which were not available in the launch version of the game.  However, NMS still achieved impressive sales figures, maintains a healthy fan base and the Advertising Standards Authority (ASA) has now held that the ads and content found on the Steam page for NMS were not misleading.

The Complaints

The ASA adjudication arose as a result of consumer complaints that the in-game content was not as depicted or described on the Steam page.  The Steam page contained two video trailers and several stills from the game depicting interactions with different life-forms, piloting spaceships, space battles and buildings (the ads).  It seems that the primary complaint raised by gamers was that the content of the ads didn’t fairly reflect the quality or variety of the gameplay experienced in NMS.

However, the ASA held that the ads “did not exaggerate the expected player experience of the game” and it seems that one of the key reasons that the ASA reached this decision was due to the unique procedurally generated nature of NMS.  The ASA held that users were likely to understand the images and videos to be representative of the type of content that they would encounter during gameplay, but would not generally expect to see those specific creatures, landscapes, battles and structures.  The focus of the assessment as to whether or not the ads were misleading, therefore, shifted to determine whether the game and footage provided to the ASA by the developer of the game, Hello Games, contained gameplay material of a sufficiently similar type to that depicted in the ads.

Statements made by Hello Games that NMS had “no loading screens” were also questioned by consumers on the basis that the warp sequences that were shown whilst players travelled between deep space and planetary surfaces were in fact loading screens.  However, the ASA disagreed as the warp sequences didn’t represent an interruption to the gameplay experience, being consistent with the preceding and following gameplay sequences.  The fact that warping was included in the ads also worked in NMS’s favour, as this meant that gamers who viewed the ads would have been aware of the use of warp sequences in the game and, therefore, less able to argue that they had been misled by the ads.

In general, where the ASA were unable to identify gameplay that was sufficiently similar to that contained in the ads, they held that such instances were ‘fleeting‘, ‘incidental‘ and unlikely in themselves to materially influence a consumers decision to purchase the game and, therefore, not misleading.

The ASA also took into consideration that the quality of gameplay would depend entirely on the specifications of each individual player’s computer which was a factor gamers would generally be aware of.  The footage in the ads hadn’t been caught on a high spec machine, but instead on a machine with typical spec and the videos were uploaded with a resolution of 1080p at 30 fps using anti-aliasing. In fact, Hello Games were able to demonstrate that NMS could generate graphics of a much higher quality than shown in the ads.

Conclusion

The majority of complaints made to the ASA in relation to games over the past couple of years have related to the use of in-game currency or discounts applied to the price of the game.  It’s interesting to now have an adjudication where the ASA asses claims relating to the substance and mechanics of a game instead.  It appears that the ASA has taken a thorough and well balanced approach to this decision, taking into consideration the fact that fixes and cosmetic modifications are often made to games right up to the launch date.  It’s certainly helpful to now have a more substantive decision from the ASA to provide games companies with some guidance on these points.

Takeaway points:

  • Where videos include actual gameplay, using in-game footage captured from a machine of typical specifications should help to rebut any claims that the quality of those graphics is misleading. The ASA also acknowledged that advertisers would aim to show their games in the best light possible, which shows some understanding that games will want to be able to show-off the latest graphics in their trailers and ads.
  • Cosmetic changes made to the design of the user interface and aiming systems in NMS, between the release of advertising material and the launch of the game, were deemed not to be misleading by the ASA. Therefore, it seems that there may be some leeway where superficial incidental changes are made before launch that don’t have an effect on core gameplay mechanics and features.
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George Garrard
George is an Associate and advises on a wide variety of commercial, technology and data privacy matters, in particular in the technology and IT; e-commerce; and media sectors.

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