By Drake Broussard[1]
The competitive world of video gaming, otherwise known as esports, has seen an exponential rise in popularity over the past decade. From casual players to professional gamers, esports has established itself as a legitimate and lucrative industry. However, alongside this growth, concerns about the use of dark patterns and their potential to foster addiction have surfaced. There is an intricate relationship between esports, dark patterns, and video game addiction, and there are many challenges and ethical considerations within this dynamic and quickly expanding landscape.
Esports has evolved from a niche pastime to a global phenomenon with millions of viewers tuning in to watch tournaments featuring games like League of Legends, DotA 2, and Fortnite.[2] The industry is supported by sponsorship, advertising, and massive prize pools, making it an attractive career path for many young and ambitious gamers.[3] This surge in popularity has been driven by technological advancements, increased internet accessibility, and the highly immersive nature of modern video games.[4]
Dark patterns[5] are design choices in software and online platforms intended to manipulate users into making decisions that may not be within their best interest. These patterns exploit cognitive biases and psychological triggers to drive engagement, increase spending, or retain user attention.[6] Common examples of these patterns include:
- Obfuscation[7]: Hiding critical information or making it difficult to find.
- Forced Action and Continuity[8]: Making it difficult to cancel subscriptions.
- Gamification[9]: Using game-like elements to encourage continuous engagement.
- FOMO (Fear of Missing Out)[10]: Creating a sense of urgency or scarcity to drive immediate action.
In the context of esports and gaming, dark patterns are often employed to maximize player retention and in-game spending.[11] This issue has become rampant since the popularization of “live service” games, or games that receive ongoing updates to add additional content instead of being packaged and sold as a complete product.[12] Many competitive esports games fall into this category of video game.
Addiction, particularly in gaming, is characterized by compulsive engagement in an activity despite negative consequences.[13] The mechanics of gaming addiction can be understood through several psychological concepts:
- Reward Systems[14]: Games, especially competitive-based multiplayer games, often use variable reward schedules similar to those found in gambling, which create unpredictable outcomes that work to keep players hooked.
- Social Interaction[15]: Multiplayer games offer social rewards and community belonging, which can be powerful motivators for continued play.
- Achievement and Progression: The sense of accomplishment from completing specific tasks or leveling up can drive addictive behavior.
Dark patterns in video games (mostly live service games) exploit these psychological mechanisms through several avenues, attempting to enhance player engagement and spending. For example:
- Loot Boxes[16]: Randomized rewards that can be purchased, tapping into the gambling-like thrill of unpredictability.
- Premium Currency[17]: Virtual money that obscures the real-world cost of purchase, making it easier for players to spend more.
- Time-Limited Events[18]: Also commonly known as “Playing by Appointment,” these events create urgency and FOMO, encouraging players to log in frequently and spend money in an effort to not miss out on exclusive rewards.
These tactics can lead to excessive gaming and spending, contributing to addiction in players.
The use of dark patterns in esports and gaming raises significant ethical concerns.[19] On one hand, game developers and companies are driven by profit motives and the need to keep their player base engaged. On the other hand, these practices have the potential to exploit vulnerable individuals, particularly young players, leading to addiction and financial harm.[20] This ethical dilemma centers on the balance between business objectives and the well-being of players. As the video game industry continues to grow, the responsibility of game developers to prioritize ethical design practices becomes increasingly important.
Legal Implications
The growing awareness of dark patterns has led to increased scrutiny from legal and regulatory bodies worldwide.[21] Several legal implications have arisen from the use of such design tactics in gaming:
- Consumer Protection Laws[22]: Many countries have consumer protection laws aimed at preventing deceptive and unfair business practices. Dark patterns that mislead players about the nature or cost of in-game purchases could be considered a violation of these laws.
- Gambling Regulation[23]: Loot boxes and other randomized reward mechanisms (commonly termed “Gachas”) have been likened to gambling. Some jurisdictions, such as Belgium and the Netherlands, have banned certain types of loot boxes, classifying them as illegal gambling.
- Data Protection and Privacy[24]: Dark patterns that manipulate consent or obscure privacy settings may violate data protection regulations such as the General Data Protection Regulation (GDPR) in the European Union, which mandates clear and transparent user consent.
- Legislative Action[25]: In response to the growing concerns, some legislators have proposed new laws specifically targeting dark patterns. For example, the California Privacy Rights Act (CPRA) includes provisions against the use of dark patterns to manipulate consumer consent.
The legal landscape is evolving alongside the growth of the video game industry. Gaming companies must stay abreast of regulatory changes to avoid potential legal repercussions. Addressing the issue of dark patterns and addiction within video games and esports will require a multi-faceted approach. As esports continues to thrive, the ethical and legal implications of game design choices will come under increased scrutiny. Striking a balance between engaging gameplay and ethical design is imperative to ensure the long-term sustainability of the industry and the well-being of its players. By addressing these challenges through regulation, industry self-regulation, education, and player support systems, we can work to create a healthier and more responsible gaming ecosystem. As we navigate the future of esports, it is critical that we prioritize the welfare of players, fostering an environment where gaming remains a source of enjoyment and community without falling prey to the pitfalls of addiction and capitalistic exploitation.
[1] Drake is a rising third-year law student at Penn State University, and a Summer Associate with Saul Ewing LLP. Drake is also a former competitive collegiate League of Legends player.
[2] See Esports Players Club, The Bright Future of Esports: What You Need to Know (June 2023), https://www.esportsplayersclub.com/post/the-bright-future-of-esports-what-you-need-to-know#:~:text=Esports%2C%20or%20competitive%20video%20gaming,in%20esports%20teams%20and%20events.
[3] Id.
[4] Id.
[5] See Eric Ravenscraft, How to Spot-and Avoid-Dark Patterns on the Web, Wired (July 2020), https://www.wired.com/story/how-to-spot-avoid-dark-patterns/ (“The term ‘dark patterns’ was first coined by UX specialist Harry Brignull to describe the ways in which software can subtly trick users into doing things they didn’t mean to do, or discouraging behavior that’s bad for the company”).
[6] See Arunesh Mathur, Jonathan Mayer, and Mihir Kshirsagar, What Makes a Dark pattern… Dark?, (Jan 2021), https://arxiv.org/pdf/2101.04843.
[7] Id. at 6.
[8] Id.
[9] See Tobias Nystrom, Exploring the Darkness of Gamification-You Want it Darker?, Intelligent Computing: Proceedings of the 2021 Computing Conference (2021), https://www.diva-portal.org/smash/get/diva2:1518853/FULLTEXT01.pdf (“dark gamification design could be defined as the craft of purposefully designing gamification that do not have the well-being of the user in mind.”).
[10] See Fiona Westin and Sonia Chiasson, Opt out of Privacy or “Go Home”: Understanding Reluctant Privacy Behaviours through the FoMO-Centric Design Paradigm (2019), Association for Computing Machinery, New York, NY, USA, 57–67. https://doi.org/10.1145/3368860.3368865
[11] See Papa_Lamp, What is a Dark Pattern in Video Games?, WordPress (Aug 2014), https://gurusability.wordpress.com/2014/08/28/what-is-a-dark-pattern-in-video-games/
[12] See Tim Brookes, What are Live Service Games (and Why are They so Polarizing?), How to Geek (Mar 2024), https://www.howtogeek.com/what-are-live-service-games-and-why-are-they-so-polarizing/.
[13] See Cleveland Clinic, What is Video Game Addiction? https://my.clevelandclinic.org/health/diseases/23124-video-game-addiction
[14] See Robert Warner, How Video Games Keep Us Invested: The Reward Cycle, Medium (May 2019), https://medium.com/@rjwarner98/how-video-games-keep-us-invested-the-reward-cycle-672b485f3ff4 (“It’s clear that simulated rewards are a large part of why games are able to keep the player engaged. That rush of dopamine and sense of accomplishment from achieving a goal set by the game or the player is what keeps them coming back”).
[15] See Helena Cole and Mark Griffiths, Social interactions in Massively Multiplayer Online Role-Playing Gamers, PubMed (Aug 2007) (“MMORPGs were found to be highly socially interactive environments providing the opportunity to create strong friendships and emotional relationships”).
[16] See Dark Pattern Games, Gambling / Loot Boxes, https://www.darkpattern.games/pattern/38/gambling-loot-boxes.html (“Players purchase Loot Boxes using money or premium currency and when they open the box they get a random chance at getting an item. Valuable items are less likely to appear than regular items, and the number and quality of the items can be variable. Randomizing the rewards gives players an incentive to keep trying until they get the prize they want”).
[17] See Dark Pattern Games, Premium Currency, https://www.darkpattern.games/pattern/16/premium-currency.html#:~:text=One%20of%20the%20most%20common,or%20otherwise%20play%20the%20game (“The exchange rate between real money and the premium currency often disguises the real price of items that you purchase in the game. This is compounded by the fact that purchasing larger bundles of premium currency often gives you a better exchange rate”).
[18] See Dark Pattern Games, Playing by Appointment, https://www.darkpattern.games/pattern/10/playing-by-appointment.html (“Playing by Appointment means that instead of you deciding when to play, the game decides for you. If you don’t play according to the game’s schedule you are penalized… If you want to participate in the special events, you must play during this time window”).
[19] See Celia Hodent, Ethics in the Videogame Industry: A Mythbusting and Scientific Approach (Dec 2019), https://celiahodent.com/ethics-in-the-videogame-industry/.
[20] See Jenn McMillen, Who Uses Dark Patterns? A Breakdown of E-Commerce Bad Practices, Forbes (May 2024), https://www.forbes.com/sites/jennmcmillen/2024/03/27/who-uses-dark-patterns-a-breakdown-of-e-commerce-bad-practices/#:~:text=More%20than%2040%25%20of%20consumers,and%20brands%20to%20step%20in (“More than 40% of consumers have experienced unplanned financial consequences due to dark patterns”).
[21] See Catherine Zhu, Dark Patterns – A New Frontier in Privacy Regulation, Reuters (July 2021), https://www.reuters.com/legal/legalindustry/dark-patterns-new-frontier-privacy-regulation-2021-07-29/#:~:text=Reining%20in%20the%20use%20of,the%20use%20of%20dark%20patterns (“the increasing use of dark patterns has caught the attention of state and federal regulators”).
[22] See Amy Lee Tan, US Regulators Crack Down on Deceptive Practices Targeting Consumers, Columbia Science and Technology Law Review (Feb 2024), https://journals.library.columbia.edu/index.php/stlr/blog/view/593#:~:text=In%20recent%20years%2C%20the%20Federal,Trade%20Commission%20(FTC)%20Act (“The Federal Trade Commission (FTC) has intensified its enforcement efforts against dark patterns. The FTC considers dark patterns “unfair or deceptive” business practices under Section 5 of the (FTC) Act”).
[23] See Scott Goodstein, When The Cat’s Away: Techlash, Loot Boxes, And Regulating “Dark Patterns” In The Video Game Industry’s Monetization Strategies, 92 U. Colo. L. Rev. 285 (2021).
[24] See Amel Bourdoucen, Leysan Nurgalieva, and Janne Lindqvist, Privacy Is the Price: Player Views and Technical Evaluation of Data Practices in Online Games (Oct 2023), https://doi.org/10.1145/3611064.
[25] See Alyssa Boyle, State Privacy Laws Will Spur Action Against Dark Patterns, Ad Exchanger (Aug 2022), https://www.adexchanger.com/privacy/state-privacy-laws-will-spur-action-against-dark-patterns/ (“Currently, three of five US state privacy laws explicitly call out dark patterns, including CPRA in California, the Colorado Privacy Act and the Connecticut Data Privacy Act”).
