Abstract
Consumers in the EU have a discretionary withdrawal right for online transactions. For 14 days (or longer, if they have not been properly informed of this right), they can cancel the contract and claim a refund. This right is generally mandatory and can only be contractually waived in advance in contracts for the provision of digital content. German courts have handed down a series of judgments confirming that virtual in-game currency qualifies as digital content for the purpose of this exception and clarifying the conditions under which such waivers can be obtained. Most decisions indicate waiver language can be integrated into the purchase flow prior to the final purchase decision, with some courts requiring a separate checkbox. One decision would force providers to implement separate consent mechanisms after the consumer has made the purchase but before the virtual currency is made available to them. In any event, implementing the requirements set out by German courts also requires the cooperation of distribution platforms.
Highlights
European law has long provided for a consumer withdrawal right in distance selling and online contracts for goods and services, based in part on the rationale that consumers in those situations did not have an opportunity to inspect what they were getting prior to making their commitment.[1]
German courts have handed down a series of judgments confirming that virtual in-game currency qualifies as digital content for the purpose of this exception and clarifying the conditions under which such waivers can be obtained
The legislator did see the problem that the economic value of online digital content could reside in its onetime consumption, such as viewing a streamed movie, and that even where content was designed for long-term use, such as a downloadable video game, enforcing a consumer’s obligation to ‘return’ it in the event of a withdrawal met with practical challenges.[3]
Summary
European law has long provided for a consumer withdrawal right in distance selling and online contracts for goods and services, based in part on the rationale that consumers in those situations did not have an opportunity to inspect what they were getting prior to making their commitment.[1]. For game publishers, the directive does not provide specific answers to the question whether small individual parts of a game, in particular virtual currency for use inside an online game, were covered by the CRD’s concept of digital content, or how a provider should go about obtaining a waiver with legal certainty Getting it wrong would have significant consequences. If a publisher’s process for obtaining a waiver was insufficient, i.e. did not comply with the requirements of the CRD (as implemented into the national law of the EU member states), their information to customers (‘You no longer have a withdrawal right’) would be incorrect This in turn would extend the initial 14 day withdrawal period to one year and 14 days under Article 10(1) CRD, and open the publisher up for additional enforcement (cf Article 23 CRD). Since Article 4 CRD provides for full harmonisation, this guidance could be useful throughout the EU in the absence of a body of CJEU case law
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