Italy: (In)Game Advertising: The European Perspective On Related Legal Problems.

Last Updated: 2 April 2009

By Avv. Felix Hofer 1

1. When I came around 'game advertising' for the first time my attitude as a lawyer, not necessarily familiar with what I – snobbishly – considered as basically being "kid's or nerds' stuff", was obviously extremely skeptic. Running more and more frequently into articles published on the topic, I very soon had to realize that this was already a definitely "hot" topic to a number of industry sectors, involving an incredible amount of investment as well as offering truly exciting business perspectives.

According to an interesting US study2, published in June 2007 on in-game ad spending targeted to digital homes in the period 2006–2012, companies had already invested 370 mln. of USD and were expected to increase such figure up to 2.051 mln. USD in year 2012.

Fairly impressed by the forecast exposed in the US study I got curious about how feelings would be in Europe about potential business development with respect to the specific area. Again surprise, surprise: according to a study performed on behalf of the EU Commission3 total revenues from on-line content sales will reach 8,3 bln. on Euro by 2010 (at an increase rate of a growth of over 400% in five years!) and on-line games will contribute with a significant share to that quite remarkable pie. In Fall 2007 another study 4 showed that the Internet had already become the most popular communication tool among youngsters aged between 16 and 24; in the specific target group 82% affirmed to go on-line at least 5 days per week for entertainment and information purposes, while 46% declared that they preferred the Internet over (and used it more than) TV.

With the final blow I was provided when I had to realize that 9,8 bln. Euro had been spent for game consoles only during the 2007 Christmas period, that even traditional community venues (as sports arenas, shopping centers) were arranging specific gaming areas and organizing new entertainment events (e. g. "disc burn" sessions) attractive for gamers, that digital platforms did score important come-backs for popular past-time games and that in France the gaming sector had surpassed the entertainment industry for the first time in annual revenues.

2. So, this wasn't exactly a 'niche area'! It was fairly obvious that this was actually big, big business and therefore extremely attractive to the advertising industry for a number of reasons, the most evident ones being that:

- gaming had definitely developed form a 'lost boys' domain into a widely accepted 'social activity', not limited to a young public, but intensely practiced by entire families and people of all ages,

- gamers did not appear to be disturbed by in-game ads (a reaction very different from that widespread among the TV audience), they actually did perceive those ads as relevant for (and realistic within) the gaming context,

- they were even more eager to accept such advertising when it reflected positively (through some additional benefit as a lower sales price) on their game purchase5,

- during recent years dynamic in-game ads had been on a constant rise compared to static ads (2006, 40% of global spending - 2007, approx. 55%).

Furthermore industry enthusiasm appeared widely justified by the fact that:

- game play metrics offered an extremely interesting perspective both, on marketing effectiveness as well as on user habits (just think of details as: angle/distance of ad views, game pauses, position changes; not to speak of a truly exciting profiling potential, where users' in-game behavior can be evaluated and categorized, e. g. the "dishonest/unfair", "brave/daring", "non-competitive/confrontational" guy),

- identical in-side views were available with respect to demographic targeting (based on the kind of game it's possible to deliver different dynamic ads to specific audience groups), while real time placement may easily be performed and consumer engagement may be achieved (e. g. by combining an on-line ad with an advergame),

- the opportunities for product placement and cross marketing appeared to be simply immense.

3. Not much doubt about the attractiveness to business, but what are the legal implications of this popular new marketing tool? Well, from a European (more specifically from an EU) perspective those implications are multiple and somehow worrying. Let's therefore have a closer look at the provisions likely to come into play, when in-game advertising is performed.

3.1. A company intending to promote and advertise a game will need to properly consider:

  • the general principles laid down in the EU Directive on misleading and illicit comparative advertising6,
  • the principles and criteria established by the EU with the aim of preventing unfair commercial practices7,
  • the additional rules introduced by the so-called "Audiovisual Media Services Directive - AVMSD"8,
  • the national implementing provisions of the Directives indicated above as well as some (domestic) sector specific regulations9.

3.2. When a game is sold through an on-line order system, it'd be advisable to bear in mind that the EU Directive on Distance Sales 10 grants customers a specific right of withdrawal11, which may not be waived, and puts a number of obligations on the seller12.

3.3. Where a game reaches users through on-line purchase (e. g. through a download) it's to be borne in mind that the so-called E-commerce Directive 13 imposes specific consumer information duties, peculiar obligations as to sales promotions and also restrictions on (unsolicited) commercial communication.

4. Industry and Business (especially marketing experts) have given a particular hype to the opportunities of 'product placement' quite obviously offered by in-game advertising. This hype was even more stressed as several European countries 14 apparently felt that the upcoming "Audiovisual Media Services Directive" 15would remove most of the previous restrictions and obstacles, which up till now resulted in significant limitations to product placement tactics.

Aside from remarkable lobbying efforts performed with the patent aim of liberalizing product placement throughout the territory of the EU, it's all but clear on which legal basis such convincement was grounded.

4.1. As a matter of fact, while EU Directives did not specifically deal with 'product placement', it's been quite clear that the so-called Television without Frontiers Directive16, requiring both, all advertising to be readily recognizable and to be kept quite separate from other program parts as well as surreptitious advertising to be strictly avoided, did actually leave little space for a broad use of product placement17.

In addition, on a national level European Courts have constantly been quite sensitive and coherent in interpreting laws and regulations governing advertising as hardly compatible with product placement techniques. An Austrian Administrative Control Authority did not hesitate 18 to consider headlines in a TV program, crediting fashion houses for the supply of the host's and moderator's clothing, as an unacceptable and illicit practice. In Switzerland an independent Advertising Watchdog upheld 19 a complaint against the Swiss Public TV and Broadcasting company, filed with respect to images of a moderator commenting on the sailing team victorious in the America's Cup with a mike in his hand featuring the winner's logo.

4.2. On these premises too much of expectation seems to have been placed in the upcoming provisions of the AVMS Directive no. 65 of 2007, as it:

  • strictly maintains the "transparency principle" for all commercial communication,
  • actually confirms the previous ban of hidden/surreptitious advertising,
  • contains strict limitations as to advertising targeted to children,
  • finally, allows - but entitling Member States to rule differently - product placement :
  • for movies and TV films/serials, sports and entertainment programs, or
  • when resulting in free supply of products/services,

provided it does not:

  • exercise undue influence on content or programming,
  • directly push products/services' purchase,
  • excessively high lighten the product/service,
  • lack of appropriate identification (at program's beginning and end).

It actually appears as if the Directive, originally meant 20 to ease product placement – in its function of a crucial financial resource for the broadcasting and media industry - had to compromise on a significantly "watered down" text21, which is likely to face further limitations 22 in the context of national implementation throughout the EU23.

5. Identically critical and problematic do result two other beneficial aspects, generally associated with in-game marketing: behavioral targeting as well as gamers' profiling.

Such marketing tools will have to keep a sharp eye on the provisions governing processing of personal data in countries members to the EU.

In fact, Directive no. 46 of 199524:

  • defines as "personal data" any information apt to identify a physical person,
  • requires for processing the consent of (properly informed) data subjects,
  • grants data subjects specific rights as to their personal information,
  • may eventually require in-advance notification with Personal Data Commissioner.

Furthermore, Directive no. 58 of 2002 25 additionally:

  • harmonizes data handling in electronic communication,
  • sets an opt-in system with respect to unsolicited commercial communication,
  • allows use of location data only previous consent or under anonymity,
  • requires an easy opt-out mechanism ("killer bottom").

It's no secret that the EU Commission plans to have a closer look on how personal data submitted by consumers are used by search engines, social networks and IS providers and has repeatedly voiced serious concern 26 about deep packet inspection techniques allowing consumers' online tracking even after cookies have been deleted.

6. This legal framework doesn't make in-game advertising exactly easy to perform. Marketers are clearly challenged to weave through a battleground crowded with legal mines. On the other hand, the EU results also in an – highly appealing – plus 500 million consumers market, which definitely induces to take some risks.


1. Felix Hofer is a naming and founding partner of the Italian law firm Studio Legale Associato Hofer Loesch Torricelli, in Firenze (50132), via Giambologna 2/rosso; he may be reached through the following contact details: Phone +39.055.5535166, Fax +39.055.578230 – e-mail: (personal) or (firm e-mail).

2. Industry Report from PARKS ASSOCIATES 2007: 'Electronic Gaming in the Digital Home: Game advertising'.

3. Comments of the Commissioner for Information Society and Media on the results of the study.

4. Named 'Mediascope Europe' and preformed by Synovate on behalf of the European Interactive Advertising Association- EIIA.

5. According to UK survey 'a vast majority of gamers, 86%, said that they were happy to see ads placed within games if it brought down the prices they had to pay' and also that they 'do not see in-game ads as intrusive'. Source Jennifer Whitehead's article 'Gamers respond well to in-game advertising' in Brand Republic 28-Aug-07.

6. Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising.

7. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council. Section 6 of the Directive specifically governs marketing and advertising.

8. Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities. The Directive is due to be implemented by EU Member States no later than by December 19th, 2009.

9. Reference is to countries' rules on State Monopoly eventually covering games of chance with entry fees and awarding money prizes (should such a system be built into the game).

10. Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts.

11. To be called on within a "cool off" period from 7 up to 30 days (but not after a sealed package's opening).

12. As to contract performance, delivery costs and terms, pricing, product's characteristics and functioning requirements.

13. Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.

14. In particular the UK.

15. Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007.

16. Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, now due to be amended and integrated by the Audiovisual Media Services Directive.

17. The Consolidated ICC Code of Advertising and Marketing Communication Practice (which inspires most of the Self-Regulation systems) also provides (in Section 9) that "Marketing communication should be clearly distinguishable as such, whatever their form and whatever the medium used".

18. "Bundeskommunikationssenat" – (Austrian) Federal Office for Communication, decision April 4th, 2006; previously, on an identical topic, decision October 14th, 2005.

19. "Bundesamt für Kommunikation (BAKOM)" – Federal Office for Communication - and "Unabhängige Beschwerdeinstanz für Radio und Fernsehen" – Independent TV and Broadcasting Complaint Authority - decision December 7th, 2007.

20. On huge pressure of the Media Industry.

21. Consumer protection advocacy groups have certainly played a crucial role in this outcome.

22. Strong objections against product placement in TV programs had already been voiced by the German Journalists' Association in November 2007.

23. Rather surprisingly, according to recent press reports, the UK Culture minister announced – in a public statement – that ".. the government had examined the idea of introducing branded products on screen - as is increasingly common in the United States - but had decided to keep its current ban in place".

24. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

25. Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).

26. In March 2009 Commissioner Meglena Kuneva, in charge of Consumer Protection, has announced a "black list" of improper and misleading terms with respect to policies aiming at making on-line access conditional to the submission of personal data.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions