Game over for dark patterns? ACM fines Epic for unfairly targeting children

NL Law

Over the past years, the ACM has published extensive guidance on deceptive consumer practices in the digital sector, commonly called “dark patterns”. Signaling that companies that violate its guidance will start paying a steeper price for doing so, the ACM has imposed a significant fine on Epic Games (Epic) for sales practices in its Fortnite game. While this is not the first time that the ACM has acted in the digital sphere, the decision provides valuable insight into the ACM’s assessment of “countdown timers” and other sales tactics, particularly those directed at children.

Fortnite, developed by Epic, is a popular online multiplayer game known for its Battle Royale mode. Monetization primarily comes from microtransactions for cosmetic items and other add-ons in the in-game ‘Item Shop’. In its May 2024 decision imposing a fine of slightly more than one million euros, the ACM found that the Item Shop’s design exploits children’s vulnerability to impulse buying and psychological triggers like fear of missing out (FOMO). Specifically, the ACM found three separate violations of European consumer law:

  1. Deceptive scarcity indicators. Epic used a 24-hour countdown timer which suggested that certain items only had a limited availability. However, in practice, these items remained available even after expiry of the timer. The ACM found this practice misleading, as false claims of limited availability can exploit children’s FOMO and pressure them into making a quick decision. This is not the first time the ACM has addressed countdown timers. While their use is not prohibited, the ACM’s 2024 ‘Guidelines on the Protection of the Online Consumer’ state that special offers must truly end once timers reach zero. Last year, the ACM used an automated audit to reveal that dozens of online stores were using fake or misleading countdown clocks. The ACM ordered them to stop these practices.
  2. Direct exhortations of children to buy advertised products. The ACM’s decision notes that any advertisement directly pressuring children to purchase products or to persuade their parents to buy products for them should be seen as an “aggressive commercial practice” which is blacklisted under the EU Unfair Commercial Practices Directive. According to the ACM, Epic’s in-game advertisements were designed and positioned to capture children’s attention and to prompt them to take immediate action, for example by using phrases like “Get it now” or “Buy now”.
  3. Complex and ambiguous sales offers under time pressure. Finally, the ACM found that the overall design of the Item Shop exploited “dark patterns”, including artificial scarcity, complex and ambiguous sales funnels, time pressure and uncertainty about the continued future availability of certain cosmetic items. These design features were considered to limit children’s ability to make informed decisions.

The ACM’s Epic decision has broader implications for consumer-facing businesses. One key learning is that sales tactics that erroneously create an impression of limited availability – such as deceptive countdown timers – will be perceived as unlawful by the ACM. Moreover, the decision shows that the ACM will take into account the broader context of a sales environment, including its colors, designs and prompts, and not consider practices in isolation. In a public statement, an ACM board member stated that the fine imposed on Epic intends to send a “clear signal” that “children must be able to play online games without being put under undue pressure.” Meanwhile, Epic’s press release argues that the ACM’s findings “contain significant factual errors” and that it will appeal the decision.