In early December, a Québec judge certified a class action (the “Complaint”) against Epic Games (“Epic”) – the developers of the popular video game Fortnite – on behalf of Québec users who had become addicted to Fortnite since September 1, 2017 (the “Class”). This article examines the Complaint and the relevant Québec consumer protection laws Epic allegedly violated.
Complaint Overview
The Complaint focuses on two claims: first, that Epic purposely created an addictive game without adequately disclosing the risk of the game’s addictiveness; and second, they illegally advertised and marketed Fortnite to children under the age of 13 (“Children”).
Failure to Warn about the Risks of Video Game Addiction
The Complaint starts by outlining publicly available information on video game addiction. The Complaint points to sources such as the World Health Organization’s classification of “gaming disorder” as an internationally recognized disease. On this basis, it claims that addiction to Fortnite is similar to addiction to illegal narcotics because playing Fortnite releases dopamine. The claim further alleges that Epic deliberately aimed to make the game addictive because:
- Epic developed Fortnite with a team of psychologists, statisticians, and analysts to make the game as addictive as possible;
- There are daily challenges that encourage users to return to the game each day
- The game changes every 10 weeks and encourages users to accumulate new rewards and in-game purchases.
The Complaint argues that, despite knowing the dangers of video game addiction, Epic did not appropriately warn consumers of such risks.
According to the Complaint, Children in the class have exhibited the following behavioural changes:
- a child who would only play video games once or twice a week was now playing Fortnite for at least 3 hours a day;
- a child would use all of his savings and gifts of money to make in-game purchases; and,
- a child’s real-life social interactions diminished once the child downloaded Fortnite
Marketing to Children
The Complaint states that Epic illegally marketed Fortnite to Children. The Complaint alleges that Epic knew the game would be marketed to Children because:
- The design and colours of the game are appealing to Children “as if a comic book character were coming to life”;
- Children are socially pressured to purchase in-game cosmetics;
- Gaming influencers devote a lot of time to making Fortnite content
- Epic previously hosted a Fortnite World Cup with a 30 million dollar prize pool, thereby giving Children a false dream of prestige if they continued to play Fortnite
Québec Consumer Protection Laws
As discussed in our previous post, Canada has several consumer protection laws, including the provinces’ legislation. In the case against Epic, the Class has brought the action under Québec’s Consumer Protection Act (the “Act”).
The Complaint argues that Epic did not adequately disclose the risks associated with Fortnite and addictive video game behaviour. According to the Complaint, this contravenes the Act because the Act states that:
- A consumer who has entered a contract with a merchant is entitled to recourse against a merchant if there is a lack of instructions necessary to protect consumers against risks or dangers which the consumers could not have foreseen1
- No merchant, manufacturer, or advertiser may fail to mention a key fact in a representation made to a consumer2
In addition to the above sections of the Act, it further prohibits commercial advertising directed at Children.3“Commercial advertising” includes web, radio, television, mobile, signage, promotional, and print advertising.4Québec is the only province in Canada that includes such a prohibition– although the US has similar laws under the Children’s Online Privacy Protection Rule (“COPPA”).
Businesses that contravene the Act can be liable for fines ranging from $2,000.00 to $100,000.00 per offence.5Québec’s Guide on Advertising to Children also states that individuals at companies who knew about such offences can also be personally liable for fines ranging from $600.00 to $15,000.00 per offence.
An Analysis of the Complaint
While the first claim alleges that Fortnite was purposely made to be an addictive game and Epic failed to warn users of such dangers, I do not think the Complaint provided the strongest arguments to support this claim. The Complaint infers that the publicly available information should have been enough for Epic to know that they needed to disclose the risks associated with playing Fortnite and their failure to do so caused Children to be addicted to the game.
However, we could turn this argument around on the parents of the Class. Considering how widely available the information is, the parents should have also been able to realise the risks associated with the game (and video games in general). However, if the court sides with the Class, any video game available in Québec that gets updated frequently and includes daily challenges may have to start disclosing more information about the risks of video game addiction.
Alternatively, I think there is more merit to the claim that Epic knowingly marketed the game toward Children in contravention of the Act. Specifically, Epic’s recent settlement with the US Federal Trade Commission for violating COPPA (discussed in more detail in our next post of this series) has already established that Epic unlawfully marketed the game toward Children in the US. Therefore, since both COPPA and the Act prohibit advertising to children, this claim is more likely to be found in the Class’ favour.
If you’re a business or game developer operating in Québec, it’s crucial to comply with the Act to avoid legal repercussions and protect your brand reputation. That’s why it’s wise to seek legal counsel to ensure you’re properly disclosing any risks associated with your product and that your marketing materials are compliant. Our experienced attorneys at GME are here to help. Don’t hesitate to reach out to Zack or Jack at zack@gmelawyers.com or jack@gmelawyers.com to learn more and ensure your business is fully protected.
