Opinion: We need to protect children from Fortnite and other manipulative games and apps

Vass Bednar is the founder of Reg wealth newsletter, senior fellow at the Center for International Governance Innovation, and executive director of McMaster University’s digital society master’s program.

Last year, the US Federal Trade Commission imposed fines Fortnite developer Epic Games Inc. more than half a billion dollars for privacy violations and unwanted fees. Epic will pay a $275 million fine for violating the Children’s Privacy Act, change its default privacy settings, and refund $245 million for tricking users into unintended purchases.

The ruling exemplifies the intersection of consumer protection, privacy and competition concerns that Canadian law fails to adequately address. Epic Games’ missteps in the US are forcing Canadian policymakers to step up and consider how we can better use what we have in our legislative toolbox to play a better political game. As US President Joe Biden said in his State of the Union address in February, “We must finally hold social media companies accountable for experimenting on our children for profit.”

We are at a unique moment as the country considers legislative interventions in parallel that may complement each other. The federal government is actively consulting on the future of competition policy as it reviews updates to federal private sector data protection law and seeks to level the playing field between digital giants and content creators and media outlets.

Despite these efforts, the problematic reality remains: the digital economy simply lacks adequate consumer protection provisions. Formerly Canada’s Minister of Consumer Affairs and Enterprise, this role was merged into the Department of Industry (now Innovation, Science and Economic Development Canada) in 1995. In the absence of such a goal, individuals are burdened with the obligation to read. the often exploitative layouts of fine print and navigation are astronomical – if not comical. Given the amount of fraud typical internet users have to deal with, it’s worth asking why we seem comfortable in Canada letting minors frolic in a game world that lays minefields full of devious tricks designed to get kids to click and spend their parents’ money – not to mention that we deal with it on a daily basis.

Too many mobile apps and games use manipulative tactics – often referred to as “dark patterns” – to keep kids online longer and extract data from them. Dark patterns do not exist in Canada’s regulatory gray zone; in theory, we enforce them through the civil and criminal provisions of the Competition Act, which seek to deal with misleading advertising. In practice, however, the successful application of these provisions is much less clear. A more coordinated approach through the support of provincial consumer protection authorities could improve awareness and identification of these tricks.

As social psychologist Jonathan Haidt recently pointed out, “We have over a hundred years to make things safe for children [in the physical world]. 10 years ago, life shifted to phone-based apps and there was zero protection for children.” It’s no secret that children need better protection online. This cannot be achieved only through efforts to combat online harm. It may be difficult for politicians to adopt a more holistic, transversal approach because it defies the bureaucratic scaffolding we have built and propped up. At the same time, it also seems clear that many pressing policy options are simply not suitable for any ministry.

Seen through a Canadian lens, the Epic Games ruling exemplifies that the legislative distinction between privacy, competition and consumer protection can sometimes be counterproductive, particularly with regard to children. In the Canadian context, no regulatory agency would likely pursue such a case because it is unclear where the primary authority responsible for the bankruptcy is.

Sometimes we spend too much time thinking about which political figure should hold the joystick and lose time as the problems persist and grow. The FTC found that Epic Games intentionally deceived people who loved to play Fortnite. But we’d be fooling ourselves if we didn’t seize the opportunity to revolutionize the way we approach the regulation of digital reality. It’s time for lawmakers to step up, too.