The evolution of the video game industry has definitively shifted its status from a niche product for a limited audience to a mainstream entertainment product consumed in various forms by the majority of the population.
Economically, the video game sector has operated and taken advantage of new economic mechanisms to offer products and services, particularly remotely, with the rise of free models and microtransactions.
Appearing in the 2010s, the term “dark pattern” has become established in the digital interface design sector to denounce manipulative practices derived from behavioral economics (neuromarketing).
Unlike “nudges”—processes or mechanisms that guide an individual’s decision-making without coercion and in their best interests—dark patterns are characterized by mechanisms that work to the detriment of consumers.
While the latter promote the economy, the former raise concerns about consumer protection, leading in some cases to legal sanctions.
Epic Games, publisher of the video game “Fortnite,” has recently been the subject of several lawsuits, accused of manipulating players into making purchases, sometimes in an abusive manner.
Dark patterns: Interfaces designed to manipulate, influence, and unsettle consumers
The legal classification of sales interfaces offering services designed to deceive or manipulate users/consumers/players involves distinguishing between several categories:
1. Platforms that manipulate consumer attention or preferences;
2. Platforms that limit consumer capacity for action;
3. Platforms that manipulate desirability, in particular by creating a sense of urgency to purchase/subscribe to the service.
Beyond these presentations, case-by-case analysis of practices reveals greater difficulty in identifying and qualifying these dark pattern practices, given the wide variety of mechanisms that can be used: complex and confusing language, emotional manipulation, false hierarchy of elements, interface interference, preselection, forced actions, and even harassment.
When asked about this issue, the Council of State validated the compliance of a cookie banner system that required either a purchase or a change of mind in the event of an initial refusal to accept data collection in order to access a website.
In a humorous way, an influencer denounced the dark pattern system used for unsubscribing from services:
Dark patterns & video games
Guided by new economic models for video game exploitation, particularly the monetization of content, several players now recognize that certain video games are closer to being a service than a product.
This position therefore justifies a consumption approach based not on sales but on a license to use the content. In this context, mechanisms aimed at extending the life cycle of video games have multiplied, with practices designed to retain players.
A considerable number of video game behaviors and mechanisms can be viewed through the prism of behavioral manipulation in gaming:
Time-based dark patterns with dedicated playtime, daily or recurring rewards, repetitive actions, forced advertising, infinite levels, imposed downtime, or the inability to save or pause.
Money-based dark patterns with mechanisms such as “pay to skip,” intermediary virtual currencies, play-to-win, artificial temporary offers, accidental purchases, recurring fees or bets/loot boxes, “power creep” and devaluation of in-game content purchases, pay walls, aversion to waste, and anchoring tricks.
Social-based dark patterns with social pyramids (inviting friends for benefits, requiring players to play at the same time as others), spamming contacts, reciprocity, promoting antisocial behavior, fear of missing out, competition between players, etc.
Dark psychological patterns incorporating elements such as the valuation of your account (time, money, trophies, etc.), badges and progress curves, collectibles, false information (illusion of performance), random rewards, aesthetic manipulations, frequency bias, etc.
Game Monetization and Aggressive Business Practices: A Balance to Be Found for Publishers
In the mobile gaming industry, it’s common to see “bait and switch” mechanisms in certain video game titles. These involve hijacking an interface action, resulting in an unintended outcome. In this case, a validation rather than a cancellation, an order confirmation instead of a simple cart check, etc. The underlying idea is to use psychological conditioning via a visual habit, such as a particular color or a specific location.
The same is true of “Fake Urgency” mechanisms, which incorporate countdowns, alarming warnings about the upcoming unavailability of certain content, and special offers with vague deadlines, with the aim of accelerating the conversion of a cart into a purchase.
Collectible content is also widespread in some games, capitalizing on the anxiety of missing out. Access to them is often linked to time-limited events and requires players to log back in regularly.
NFTs & Loot Boxes: Forms of Dark Patterns Sanctioned Around the World
Appearing in the 2010s, virtual loot boxes/chests called “Loot Boxes” offer players, upon payment of a sum of money, an advantage, generally virtual items, presented in the form of bonus packs, offering the player a random improvement in the game: new cards, characters, objects, game mechanics, etc.
The similarity between loot boxes and gambling has led several states to regulate or sanction these methods of purchasing virtual goods.
In France, the National Gaming Authority has proposed three criteria for categorizing loot boxes based on the existence of payments for access, the random prize, and the possibility of reselling winnings for real currency.
Dynamic pricing: personalized prices for players
The concept refers to economic and marketing strategies for adapting prices based on supply and demand. Theorized for energy supply and then extended to the aviation sector, this format has particularly developed through online sales and e-commerce. These new pricing methods are expected to intensify with the integration of artificial intelligence tools.
The economic benefits for companies are significant: instant price updates and flexibility, cost reduction, increased customer satisfaction, etc.
The dynamic pricing system can integrate consumer/internet user analysis tools to adapt offers based on various criteria: online behavior, geographic location, socio-demographic profile, etc. While the desired balance between a customer’s demand and the offer of a price close to their expectations is precise, the risk of abusive manipulation of the latter through forms of dark patterns or manipulative processes carries legal consequences.
Digital Service Act & Banning Dark Patterns
The recent Digital Services Act, which came into force on February 17, 2024, has incorporated the risks associated with these practices, formally prohibiting the design, organization, and operation of online interfaces intended to deceive or manipulate consumers “by impairing or compromising their autonomy, decision-making capacity, or choices” (Art. 25, DSA).
This legislation targets not only the sincere and fair information provided to consumers, but also the interactive device that enhances it, raising questions about the difficulty of identifying them and measuring their effects. Consumer associations have noted, to date, their ineffectiveness in analyzing and addressing the correlations between the services offered and the proposed prices, which are constantly adjusted by the platforms.
This regulation is part of the Digital Market Act, in line with the General Data Protection Regulation (GDPR), which guides better protection of Internet users and consumers against abuses observed in the practices of digital services and service design methods that have been diverted to the detriment of users.
Epic Games: a studio repeatedly convicted of unfair practices
On May 14, 2024, the Dutch Authority for Consumers and Markets (ACM) fined Epic Games more than €1 million for unfair commercial practices.
Guided by the protection of particularly vulnerable consumers—underage children—the ACM ruled that the offers of certain in-game content appeared unfair and contrary to professional diligence. Indeed, pushing minors to purchase by playing on the rarity of an item, timers that pressured minors, and the ubiquitous “buy the battle pass” buttons were interpreted as encouraging consumers to make impulse purchases.
At the end of 2023, Epic Games was also fined by the Federal Trade Commission (FTC) as part of its anti-dark patterns policy, pursuant to Section 5(a) of the FTC Act, which prohibits unfair or deceptive practices.
The Federal Trade Commission has finalized an order requiring the maker of the video game Fortnite to pay consumers $245 million to settle allegations that the company used rigged interfaces to trick players into making unwanted purchases and let children rack up unauthorized charges without any parental involvement.
Dark Patterns in Fortnite: Protecting Child Consumers
In its report on “dark patterns,” the FTC identified four particularly widespread and problematic categories: consumer deception and disguised advertising, making cancellation difficult, concealing key terms and hidden costs, and tricking consumers into providing more personal data.
Regarding the game Fortnite, the FTC found that:
- Purchase could result from a simple key press used to wake up from sleep mode or a key adjacent to the confirm key when viewing a virtual item.
- Fortnite’s counterintuitive, inconsistent, and confusing button layouts could have resulted in hundreds of millions of dollars in unauthorized charges from consumers.Epic Games suspended the accounts of players complaining about transactions due to fraud.
Until 2018, the Fortnite interface allowed players, including minors, to purchase virtual currencies to subscribe to in-game content without the consent of the owners of the payment methods.
In response to disputes over unauthorized charges, Epic locked the accounts of the players concerned or warned of discretionary sanctions—temporary or permanent bans—if they received a new dispute.
- Options for canceling purchases and requesting refunds were difficult to access.
[1] Article L. 121-1 paragraph 3 of the French Consumer Code
[2] Protecting players and encouraging growth in the video game sector | News | European Parliament (europa.eu) – European Parliament resolution of 18 January 2023
