We talk to lawyers about the No Man's Sky false advertising investigation

If a lawsuit followed the Advertising Standards Authority's investigation, could the ads be considered illegal?

To better understand the potential consequences of the UK's Advertising Standards Authority's investigation into No Man's Sky, we reached out to a number of legal experts proficient in the realm of video game law for their take on the situation. Stephen McArthur, "The Video Game Lawyer" of McArthur Law Firm, Ryan Morrison of Morrison Lee, Jas Purewal of Purewal and Partners LLP, and Tom Buscaglia, The Game Attorney, agreed to lend us their knowledge and explain what this investigation could mean for Hello Games, Valve, and the industry as a whole.

What's the ASA, and what power does it have?

The ASA is an independent authority with the power to issue, but not enforce, sanctions on advertising that breaches the UK Advertising Codes. As such, its judgments are not legally binding, and it is up to the offending company as to whether it follows the ASA's recommendations.

It's highly unlikely the ASA will advise any sort of blanket refund or remuneration.

That said, the ASA has proven quite successful in the past, requiring French Connection, the fashion brand behind the FCUK slogan, to submit all its marketing material to the ASA for vetting before it can be displayed, as well as banning an Apple iPhone ad for false claims about the device's internet capabilities.

The key precedents

The law on false advertising in video games is developing fast, particularly over the last few years, Purewal tells us. He points out that many recent cases in the US have been unsuccessful, citing the class action lawsuit against GTA V over the omission of its online mode at launch. In the UK specifically, Purewal notes the ASA has previously ruled on Wolfenstein: The New Order and the Dungeon Keeper mobile game, with the Dungeon Keeper example of most relevance. The ASA determined that the content and features shown in an email ad for the game were misleading due to their being locked behind paid currency, despite the ad emphasising that the game was free. Because it was not clearly stated that the gameplay depicted would require in-app purchases, the ASA deemed EA in breach of the UK Advertising Code, requesting the ad be taken down and for future ads to make clear the differences between free and paid gameplay features.

McArthur mentions a few more examples worth examining in greater detail. Though these are US cases and as such hold no legal sway over the ASA's decision, the similarities between them give us a solid idea of what does and doesn't constitute false advertising.

Aliens: Colonial Marines didn't quite look like this.

Aliens: Colonial Marines

The 2013 lawsuit was initially filed against Sega and Gearbox on behalf of all owners of the game, but in 2015 Gearbox was dropped from the suit and the scope of the case was reduced from its class-action status to only representing the two plaintiffs. Sega, meanwhile, was called out by the ASA and admitted that trailers for the game "did not accurately reflect the final content of the game." Consequently, Sega settled for a reported $1.25 million and added disclaimers to its videos advising that the footage pertained to demo versions of the game, rather than the final release. 

Killzone: Shadow Fall

A class-action lawsuit against Sony was dismissed in 2015 after a US federal court found that evidence of false advertising was insufficient. The suit alleged that claims of 1080p fidelity in marketing material did not reflect the actual resolution of the running game. Due to Guerrilla Games' technical implementation, however, the difference between what they promised and what they delivered proved too minor to constitute false advertising.

Nvidia GTX 970

The GTX 970 debacle was recently resolved out of court, with Nvidia agreeing to pay out $30 to all purchasers of the graphics card within the U.S. Nvidia has maintained that the nuances of the 970's not-exactly-4GB of VRAM were lost in translation between engineers and marketers, agreeing that promotional material was misleading but insisting that any confusion was unintentional. 

The consequences

Of these precedents, both the Killzone and Nvidia cases deal with technical absolutes, claims that are fairly straightforward to prove one way or another. 1080p is a defined standard, and 4GB of GDDR5 is 4GB of GDDR5, not 3.5GB of GDDR5 and 500MB of something slower. False advertising in these cases comes down to hard numbers and clear expectations.

The No Man's Sky claims, though, aren't so easily defined, and that's where Aliens: Colonial Marines serves as the most instructive example. Morrison highlights the fact that the Colonial Marines case was reduced from a class-action suit to one representing only the two plaintiffs, a ruling made due to the difficulty of proving which players had purchased the game based solely on its false advertising, and which had picked it up for other reasons. 

It's a similar case for No Man's Sky. Of the claims the ASA is investigating, how many people bought NMS purely on the basis of it having flowing rivers? How many copies were sold on the ability to fly close to the ground? Was the promise of bathing wildlife a deciding factor for a significant chunk of the audience?

Given how impractical it would be to prove any of these claims, it's highly unlikely the ASA will advise any sort of blanket refund or remuneration. Morrison suspects something more along the lines of a strongly-worded warning advising Hello Games to be more mindful with its marketing in the future. Purewal expects much the same, pointing to the settlement between the FTC, Microsoft, and Machinima over paid endorsements on YouTube. "The impact on the consumer is indirect," he says. "They may not see ads in a particular way done again."

In legal terms, any comments made by Sean Murray in interviews or in Reddit AMAs are not considered advertising.

As for what the ASA's decision could mean for the US, Purewal notes that "the US federal regulator for advertising (the FTC) or potentially state bodies, are under no obligation one way or the other."

Morrison doubts that it will have much impact, even if the ASA concludes that players have been misled. "Under American law, I don't think they've broken the law," he tells us. Rather, he attributes the frustration and disappointment surrounding No Man's Sky to a misinterpretation of the marketing material. Videos and screenshots depict the ideal planets, the ideal wildlife, the ideal experience—and that's not necessarily what everyone's going to get. Procedural generation is inherently unpredictable; no trailer could equally represent 18 quintillion planets' worth of content in just two minutes.

Both Buscaglia and Morrison emphasise the challenge Hello Games faced in capturing the vast possibilities of a procedurally-generated universe in a handful of gameplay clips and screenshots. Because players have effectively no control over what chunk of the universe they will be thrown into, their experiences will all be different; some may enjoy nothing but lush planets full of diverse wildlife, while others may jump from dead world to dead world, never encountering the vibrancy depicted in the promotional trailers. That doesn't make this false advertising, though. Like all marketing material, trailers are designed to show off a game in its best light.

Critics have pointed out that No Man's Sky's planets aren't packed with life, as they were in early trailers.

The key distinction here is separating possibility from certainty; it may be unlikely that a player will stumble upon the idyllic worlds teased on the game's Steam page, but provided they do actually exist somewhere in the game, the accusations of false advertising will not float. As Morrison puts it, "Is it a legitimate complaint? Yes. Is it a legitimate legal complaint? No."

Morrison also points out that, in legal terms, any comments made by Sean Murray in interviews or in Reddit AMAs are not considered advertising. Claims made in these forums do not fall under the official marketing umbrella, and as such do not hold up in a legal context. Any hypothetical lawsuit would be limited to the media distributed by Hello Games as a whole. 

Is it a legitimate complaint? Yes. Is it a legitimate legal complaint? No.

Lawyer Ryan Morrison

Buscaglia is less concerned about the possible legal ramifications than he is the message all the outrage sends to other independent developers with ambitions of exploring procedural generation and non-deterministic experiences. "The thing that bothers me most about this sort of thing is the fact it can have a real chilling effect on people pushing the boundaries on procedurally-generated content," he says. "I hate to see people who are willing to push the envelope and try to make something really revolutionary like this get smashed by the people they're doing it for."

McArthur foresees a similar outcome, stating that "the biggest impact here will be that it sends a message to other game companies to be careful about what they put in their trailers and not to oversell their games with unrealistic 'gameplay footage.'"

After restating his belief that Hello Games has neither broken the law nor purposely deceived any of its players, Morrison closes with a piece of advice it's always worth reiterating: "People need to stop pre-ordering games." If you aren't 100-percent confident you know what you're getting, give it a week before handing over your hard-earned cash. Watch Let's Plays. Read the reviews. A little research goes a long way.

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