Getting Under Your Skin(s): A Legal-Ethical Exploration of Fortnite’s Transformation Into a Content Delivery Platform and Its Manipulative Potential

Abstract

This paper investigates the ethical and legal implications of increasingly manipulative practices in the gaming industry by looking at one of the currently most popular and profitable video games in the world. Fortnite has morphed from an online game into a quasi-social network and an important cultural reference point in the lifeworld of many (young) people. The game is also emblematic of the freemium business model, with strong incentives to design the game in a manner which maximizes microtransactions. This article suggests that to properly understand Fortnite’s practices – which we predict will become more widely adopted in the video game industry in the near future – we need an additional perspective. Fortnite is not only designed for hyper-engagement; its search for continued growth and sustained relevance is driving its transformation from being a mere video game into a content delivery platform. This means that third parties can offer non game-related services to players within Fortnite’s immersive game experience. In this paper, we draw on an ethical theory of manipulation (which defines manipulation as an ethically problematic influence on a person’s behavior) to explore whether the gaming experience offered by Fortnite harbors manipulative potential. To legally address the manipulative potential of commercial video game practices such as the ones found in Fortnite, we turn to European data protection and consumer protection law. More specifically, we explore how the European Union’s General Data Protection Regulation and Unfair Commercial Practices Directive can provide regulators with tools to address Fortnite’s manipulative potential and to make Fortnite (more) forthright.

Keywords: Video Games, Fortnite, Manipulation, Autonomy, Consumer Protection, Data Protection, GDPR, Unfair Commercial Practices