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Tuesday, May 5, 2015

EA takes one on the chin while Valve's Steam still under fire

By Adrian Chang, Lawyer

Big time game publisher Electronic Arts has bowed to ACCC pressure by pledging to refund customers burned by faulty games purchased through EA's Origin online digital delivery platform.

This latest scalp demonstrates the ACCC's commitment to ensuring that overseas companies marketing their products in Australia do not attempt to dissuade Australian consumers from exercising their legal rights under the Australian Consumer Law by having policies that are inconsistent with those rights.

The Australian competition watchdog accused EA of misleading customers by suggesting that Origin users who purchased games that were faulty or failed to work were not entitled to a refund.

EA has now made court-enforceable undertakings that, for the next three years, it will not make any representations to Australian Origin customers that:
  • EA has no refund policy for games purchased via Origin;
  • EA's policies exclude any rights an Australian customer might have under the Australian Consumer Law; and
  • Australian customers are not entitled under any circumstances to a refund from EA for games purchased via Origin.
You can see a copy of those undertakings (which also sets out a bit more background) here.

Generally speaking, the Australian Consumer Law requires a retailer (like EA) to give a refund for a product if it is faulty. Like most digital retailers, EA didn't offer refunds for faulty games. However, it does offer a 'Great Game Guarantee'.

On its face, EA's Great Game Guarantee appears to suggest that customers only have very limited timeframes and circumstances in which they may request or receive a refund.

EA appears to have answered its obligations with this addition to its guarantee for Australian customers. In summary, the addition makes it clear that the EA's Great Game Guarantee is in addition to any statutory rights an Australian customer would have under the Australian Consumer Law.

EA is also obliged to amend its other policies and agreements to make it clear that Australian consumers have their statutory rights despite anything else in those policies and agreements.

The action against EA adds to the growing pile of scalps collected by the ACCC based on this issue.

Apple has previously been pinged in relation to its product warranties and the EA undertakings extend the ACCC's reach into the realm of purely digital products.

The ACCC is clearly keen to add Valve Corporation to the pile. Valve, which runs Steam, the grand-daddy of all digital delivery platforms, is duking it out with the ACCC in the Federal Court of Australia over similar allegations. The case is still at a preliminary stage but is set for a trial in July.

Valve's subscription agreement currently includes a special mention to New Zealand customers expressly stating that Valve's no-returns policy does not exclude any statutory remedies under New Zealand's Consumer Guarantees Act.

No doubt the ACCC would like to see a special mention of its own.

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