According to the "China Game Industry Report" released by the Game Publishing Working Committee of the China Audio-Visual and Digital Publishing Association, the mainland game market revenue is as high as about 150 billion yuan, and the user scale is about 666 million, which shows the huge size of the mainland game industry. But as the gaming industry boomed, problems arose.
The "Report on Major Complaints of Online Game Consumers" published on the official website of the China Consumers Association pointed out: "Some online game operators suspend and delete files for some reason, do not solicit the wishes of consumers, and adopt a one-size-fits-all approach to consumers' original accounts, which is mainly manifested as: First, due to the company's own reasons, such as changes in the company's business strategy, directly announce the suspension of the service, transfer the consumer game account to other platforms, games or offset it with the virtual property of other games, if the consumer does not accept, The game company also does not refund the relevant recharge, resulting in consumers having to accept the game company's arrangement. Second, the game was suspended due to violation of relevant regulations and was investigated by the relevant departments, and the game company only returned part of the amount. Among them, "server suspension" refers to the game company's need to shut down the server due to reasons such as software updates or poor management; "File deletion" refers to the behavior of the game company to delete the data archive related to the game after the server is suspended.
In late November 2022, Activision Blizzard, a well-known overseas game company, announced that its existing licensing agreement with NetEase was about to expire, which attracted widespread attention. Blizzard China's official Weibo announced that it will stop the operation of games such as World of Warcraft, Overwatch, and Hearthstone from 0:00 on January 24, 2023. The cooperation between Blizzard and NetEase has lasted for 14 years, and has brought well-known IPs such as "World of Warcraft", "Hearthstone", "StarCraft" and "Overwatch" to domestic players. The cessation of cooperation between NetEase and Blizzard means that all virtual props, game tokens, character information, etc. in Blizzard's domestic servers will be sealed with the expiration of NetEase's operation, and all virtual property rights and interests of players in the game may face the consequences of permanent loss.
On January 30, the China Consumer Association and the People's Network Public Opinion Data Center jointly announced the "Top Ten Consumer Rights Protection Public Opinion Hotspots in 2022", including "Virtual Property Infringement Disputes Caused by Online Game Suspension and Deletion". In recent years, some improperly operated online games have "suspended and deleted files" caused virtual property disputes, resulting in consumer complaints that have repeatedly attracted public attention. What are the legal issues involved in the suspension and deletion of online games? How can consumers protect their legitimate rights and interests?
Virtual property in online games
First of all, it needs to be clarified that virtual property in online games can be called "property" in the legal sense? What exactly does it include?
Article 127 of the mainland's Civil Code stipulates that "where laws have provisions on the protection of data and online virtual property, follow those provisions." This provision is located in Chapter V of the General Provisions on Civil Rights, which for the first time recognizes the property rights attributes of online virtual property from the legal level.
Specifically, virtual property in online games can be divided into recharge-type virtual property and non-recharge-type virtual property according to different sources of acquisition. Among them, recharge-type virtual property is unused game props directly obtained or exchanged by players after recharging; Non-rechargeable virtual property refers to the virtual property obtained by players in the process of the game, such as mission rewards, level drops, etc.
Although the provisions of the Civil Code provide legal support for the protection of virtual property to a certain extent, their legal nature is ambiguous. Therefore, the definition of the right attributes of virtual property in online games is currently inconclusive. In the theoretical circle, theories involving the rights attributes of virtual property in online games include property rights, creditors' rights, intellectual property rights, new types of property rights and other understandings.
Standard terms and judicial determinations in online game service agreements
Most online game service agreements contain a large amount of content related to weakening the protection of virtual property rights and prompting the consequences of stopping the service and deleting the number, etc., in order to exclude consumers' rights to know, property rights and other rights, and there is a possibility that they will be identified as standard clauses, and then exclude the validity of the content of such clauses. For example, Article 5.3 of the *** Game License and Service Agreement stipulates that the game operator "has the right to delete the account that has not logged in for 365 days".
There are consumer lawsuits against operators against such terms. The court of first instance found that the Service Agreement disputed by the parties was pre-drafted by the game company for repeated use, and the content was non-negotiable, and it was a standard clause. According to the Contract Law, any standard clause that exempts the party providing the standard clause from the main obligations and excludes the other party's main rights shall be invalid. The 365-day period of non-login set by the game company is unreasonable, and the disposal method (deleting the account) also "lacks the honesty and credibility of the transaction". This clause exempts the game company from the obligation to operate, excludes the player's right to play the game, and is an invalid clause.
The court of second instance held that if the terms of the agreement clearly violated the Consumer Rights Protection Law or the Contract Law, some of the terms could be found to be invalid. In this case, the operator's way of disposing of the game account was too strict for the gamer who did not pay attention to or forget the terms, and the player faced the risk of directly losing the main rights of the contract without remedy measures, and the negligence was not commensurate with the risk beared, exceeding the necessary limit. In the end, this clause was ruled invalid.
Legal liability for damage to virtual property rights caused by suspension and deletion
Article 11 of the Notice of the Ministry of Culture and the Ministry of Commerce on Strengthening the Management of Virtual Currency for Online Games stipulates that "if an online game operator plans to terminate the provision of its products and services, it must make an announcement 60 days in advance... Where an online game is interrupted for 30 consecutive days due to suspension of service access, technical failures, or other reasons attributable to the online game operation enterprise, it shall be deemed terminated. ”
So what legal liability should the game operator as an online game service provider bear in an online game suspension and deletion dispute?
In accordance with the provisions of the above-mentioned "Notice", in judicial practice, it is generally determined that the shutdown of the server by a game operator according to the game operation is a normal commercial act and is in line with the practice of the game industry, as long as the game operator issues a suspension announcement 60 days in advance, informing the game player in advance of the time to stop the recharge service, stop the new account registration time, officially close the server time and the corresponding compensation plan, it is deemed that there is no fundamental breach of contract.
However, despite this, if the game operator's suspension and deletion of the number infringes on the player's ownership of the virtual property, it shall also bear the tort liability. By setting up a game account, players can obtain virtual characters, equipment and levels in the game account with money, and exercise the rights of possession, use, distribution, disposal and other rights to their account and the virtual characters and equipment in the account when operating the game, and the payment of these money and the payment of time and energy make the network virtual property have property nature and should be protected.
In the case involving an online game operating company in Tianjin, the company suspended the game account of individual players for 12 days without justifiable reasons when providing online game services, and then issued the "Explanation of Suspension of Operation", in which the compensation plan announced was unfair, resulting in the permanent loss of the identity and achievements of the individual player's virtual character in the online game, and the player suffered great economic losses and extreme mental pain. The court held that when the operator company disposed of the player's virtual property, it had neither legal rights nor formed an agreed consent with the player, and was subjectively at fault, and should bear tort liability such as compensation for losses.
Virtual Property Infringement Compensation
In view of the compensation of virtual property after the suspension of online games, it is also necessary to distinguish between recharge-type virtual property and non-recharge-type virtual property.
For recharge-type virtual property, if the player has not enjoyed the return brought by the property when he suffers a loss, the online game operator is obliged to return the player's part of the recharge amount. Article 11 of the Notice of the Ministry of Culture and the Ministry of Commerce on Strengthening the Management of Virtual Currency for Online Games also stipulates: "When terminating the service, the online game operation enterprise must refund the user in legal tender or other methods accepted by the user for the virtual currency that the user has purchased but has not yet used." "It can be seen that if the game company terminates the service, the player has the right to request the game company to refund the virtual currency that has not been consumed. Article 7 of the group standard for the Protection of Consumer Rights and Interests in Online Games, formulated by the Shenzhen Municipal Consumer Commission, Guangdong Game Industry Association, Shenzhen Quality Consumption Research Institute, Shenzhen Internet Culture Market Association and other 18 units, also stipulates: "Game virtual currency that consumers have not yet used and game services that have not yet expired shall be returned in legal tender or other methods agreed by consumers according to the proportion at the time of purchase." ”
For non-rechargeable virtual property, when judging the loss of a player's virtual property, the value of the virtual property shall be reasonably determined by taking into account factors such as the source and difficulty of acquiring the property, the fun generated by the player in consumption, and the length of time spent enjoying the service.
In the allocation of the burden of proof, the right holder in an online virtual property rights dispute has the obligation to prove the specific extent of the loss suffered, but based on the objective situation that the relevant data is mainly stored in the server of the online game operator, the right holder often relies on the cooperation of the game operator, which is difficult. Therefore, when the right holder has completed the preliminary presentation of evidence and the online game operator does not provide new evidence, the type and specific amount of virtual property claimed by the right holder should be supported.
Regulation of online game operators
Article 7 of the Norms for the Protection of Consumer Rights and Interests in Online Games stipulates that online game operators "shall provide complaint channels specifically for recharge and consumption"; Article 8 stipulates that "business units shall indicate the contact information for consumer rights protection and dispute handling methods in a conspicuous position on online game-related websites and games, and shall publish the results of the handling according to the type of dispute." ”
When adjusting their business strategies, online game operators should not only fully understand consumers' wishes and adopt methods acceptable to consumers, but also properly handle consumer disputes, provide convenient and diverse complaint channels and relief measures, and improve consumer satisfaction. Specifically, online game operators need to fulfill the obligation of advance notification, follow the principle of good faith, and formulate a reasonable compensation plan for suspension when necessary.
How online gaming consumers can protect their rights and interests
Article 10 of the mainland's Law on the Protection of Consumer Rights and Interests stipulates: "Consumers enjoy the right to fair trade. When purchasing goods or receiving services, consumers have the right to fair trading conditions such as quality assurance, reasonable prices, and correct measurement, and have the right to refuse forced trading by business operators. Article 11 stipulates that "consumers who suffer personal or property damage as a result of purchasing or using goods or receiving services shall enjoy the right to compensation in accordance with law." ”
After the game operator's clear infringement of virtual property occurs, consumers should choose to actively protect their rights and interests in accordance with the law by negotiating with the online game operator, requesting mediation from consumer protection organizations or other lawfully established mediation organizations, complaining to relevant administrative departments, submitting to arbitration institutions for arbitration according to arbitration agreements reached with business units, or filing lawsuits in people's courts. When applying for a refund, you should operate cautiously according to the official announcement, the refund involves the information security of the personal fund account, and criminals should be prevented from taking advantage of this hot spot to commit fraud.
Author: Tian Gu Senior Partner of Beijing Zhoutai Law Firm
Source: Zhoutai Research Institute 21 Finance and Economics