For many online gamers, "malicious recovery" and "recovery personnel" are the "gray areas" that make people headaches.
The so-called "recovery personnel" refer to a group of people who sell their game accounts and then maliciously retrieve them through channels such as real-name authentication, email or mobile phone numbers. Among them, there are individual players with weak legal awareness, and there are also illegal gangs that rely on accounts to recover for profit.
"The more prominent characteristic of these 'recovery personnel' is that they do not understand the law. Mr. Jin, who has been engaged in relevant offline accountability work for three years, told the Red Star News reporter that almost all of the "recovery personnel" he has contacted have a fluke mentality, believing that his illegal behavior will not have too serious consequences, "In fact, even 1 yuan is suspected of constituting theft." ”
Creative illustration: Real-name game according to IC photo
Article 127 of the Civil Code provides that where the law has provisions on the protection of data and online virtual property, follow those provisions. Liu Yaying, a lawyer at Guangdong Nuochen Law Firm, said that the relevant provisions of the Civil Code on virtual property "make it clear that digital assets are protected as property, and in the absence of a separate law or judicial interpretation, our current protection of digital assets can be handled in accordance with the relevant provisions of the common law on the protection of property or rights."
In response to the phenomenon of "malicious retrieval" of game accounts, Liu Yaying said that this kind of behavior undoubtedly has legal risks: from a civil point of view, it is a breach of contract and needs to bear the liability for breach of contract; from a criminal point of view, for the purpose of illegal possession, through the real-name verification mechanism to get back the transferred virtual property, may be suspected of theft or fraud, "We have seen many cases where this type of crime is identified as theft, and some are identified as fraud, and criminal liability must be carried out according to the specific circumstances of the case." ”
01 Some people are held accountable for the "recovery personnel" offline
On December 6, Mr. Jin's platform, which specializes in game account trading, released a video documenting his recent offline accountability process.
The video shows Mr. Jin and his colleagues going to a well-known university in Shandong to find a student surnamed Wang, who may have "maliciously recovered" a game account worth 280 yuan. After arriving at the school, Mr. Jin and his party were told that Mr. Wang was "no longer going to school". After searching for someone, Mr. Jin and his colleagues met Mr. Wang on the side of the street.
Wang said that he had swiped the accountability video related to "malicious recovery" and knew the consequences of his actions, "I must know what I did, and I just need to take responsibility." At the same time, he claimed that he had dropped out of school and that he was "maliciously retrieving" to "make money" for friends he had met online.
Just as Mr. Jin and the others were about to ask further questions, Wang's mother appeared. In her account, Wang did not voluntarily drop out of school, but was expelled from school. As for her son's "pooling of money" for the so-called netizens, the mother didn't seem to know, and she also regarded Mr. Jin and other offline accountability personnel as criminals and called the police.
After the police arrived, the misunderstanding between the two sides was resolved, and Wang finally told the cause and effect of his "malicious recovery" of the account - not long ago, he met a netizen through a game, and the other party borrowed money from him, saying that he could "borrow 50 yuan and return 1000 yuan", and he could also take him to "make a fortune". believed that it was true, he not only gave the other party 280 yuan of the "maliciously recovered" account, but also gave nearly 10,000 yuan of his own tuition, living expenses and other property to this netizen.
On December 26, according to a police officer who was in charge of theft, Wang had been sentenced to 5 days of detention on suspicion of theft; ”
Wang's "malicious recovery" of the account was previously related to the receipt of the case. Photo courtesy of the interviewee
According to Mr. Jin, in his career, "many people do not have a clear concept of the fact that 'malicious recovery' of accounts violates the law", and on the other hand, some victims do not know that they can take legal measures to protect their rights after their accounts are "maliciously recovered".
Ms. Li from Sichuan bought a game account worth 290 yuan through a trading platform in July this year, and was "maliciously recovered" by the other party. It was the first time she had encountered such a situation. On December 21, she recalled to reporters that after finding that she could not log in to her account, she immediately appealed to the platform, and due to the timely appeal, the transaction funds were frozen by the platform and recovered. The staff told her that the other party had twice made it clear that he refused to repay the money, "If it is not frozen, the scammer may not be able to recover the money as soon as he gets it and transfers it away." ”
Ms. Li's grievance record. Photo courtesy of the interviewee
The Red Star News reporter asked Ms. Li if she had considered calling the police, and Ms. Li responded, "My amount is too small, less than 300 yuan, to be honest, I didn't think about calling the police, I can find it back, and if I can't find it, I think I'm unlucky." ”
Through an online search, the Red Star News reporter found that domestic courts had made precedents on the illegal act of recovering and selling accounts many years ago. According to an article on China Court Network, in December 2019, the Rudong County People's Court in Jiangsu Province made a first-instance judgment on a case of malicious recovery of game accounts, ruling that the defendant Zuo constituted the crime of theft and sentenced him to 6 months in prison.
02Huge market and "gray industry"
Mr. Meng, a colleague of Mr. Jin, told the Red Star News reporter that according to the market research conducted by his platform, the main target users of game account transactions are mostly "18 to 25 years old", and at the same time, the "recovery personnel" who carry out "malicious retrieval" behaviors are also concentrated in this age group.
In Mr. Meng's view, with the development of the game industry, including virtual asset trading platforms, the domestic service market around the game industry will continue to expand...... A wide variety of characters, copied to the virtual world as well. As long as there are consumers, there must be service providers. ”
According to the "2023-2028 China Virtual Item (Game) Trading Industry Market Prospect and Investment Planning Analysis Report" released by the research institute Qianzhan Industry Research Institute in December 2023, the market size of China's virtual item (game) trading industry will exceed US$19 billion by 2022, and this figure is expected to increase to US$32 billion by 2027. According to the analysis of Credence Research, an international research institution, the market size of China's virtual item (game) trading industry has accounted for about 25% of the global market share.
With the continuous expansion of the market scale, the gray industry chain around game services has also quietly grown. Just recently, the UP master of station B, who has 120,000 fans, "appreciates his brother" Liu, is suspected of fraud, which has aroused many discussions among netizens. In the victim's statement, Liu had obtained funds in the name of carrying out so-called "package increase" and "slow charging" businesses. According to insiders, Liu also had dealings with some individual "account merchants" (game account sellers) and carried out activities related to account transactions.
As one of the important scenarios of game account trading, various trading platforms have also become the target of criminals. Mr. Meng said that his team had previously gone to Gansu Province to investigate the responsibility of a "circle number" fraud gang. Mr. Meng explained that the so-called "circle account" refers to the fraudulent acquisition of game accounts through illegal means and relying on these game accounts to make profits.
Just before being interviewed by Red Star News, Mr. Meng had just received a criminal verdict from the Hezheng County People's Court of Gansu Province. According to the verdict, the "circle number" gang committed a total of 11 crimes, involving an amount of 109,181.79 yuan. The 19-year-old principal offender was sentenced to 3 years and 6 months in prison and fined 5,000 yuan for constituting the crime of fraud.
Relevant criminal verdict (partial). Photo courtesy of the interviewee
The Red Star News reporter noticed that the verdict stated that more than 100,000 yuan from fraud had been squandered by the "Circle Number" gang. For this gang, Mr. Jin, who went to the scene to investigate the responsibility, was also impressed, "Not only deceived people's numbers, the victim went to him, but he also took the victim's mobile phone away to get an online loan." ”
Mr. Meng told the Red Star News reporter that in practice, similar situations are not uncommon, and the vast majority of the people involved in the case are very young, "mainly some young people who have dropped out of school, and after cheating money, they still use it as a capital to show off, and even some extreme families, seeing that their children have earned money, they think it is a way to make money, and they turn a blind eye." ”
03 "Ambiguous" account attribution
In addition to the gray and black industry, there is another long-standing legal issue that cannot be ignored in the process of account trading - the ownership of game accounts.
Mr. Meng told the Red Star News reporter that many game account trading platforms will take the right to use the account as the core of the agreement when formulating relevant contracts, so as to avoid disputes over account ownership.
In this regard, Liu Yaying, a lawyer at Guangdong Nuochen Law Firm, explained that at this stage, many Internet companies stipulate in the user agreement that the service provider has the ownership of the account, and the user only has the right to use it. There is no clear provision on this issue in China, and since the user agreement is a standard clause, there is a "risk that it may be found invalid" in legal practice.
As one of the most common virtual assets in public life, game accounts, social accounts, etc. are associated with the rights of multiple parties. Liu Yaying said that these accounts must go through real-name authentication and obtain users' personal information, which are related to the user's personal rights such as name rights, name rights, reputation rights, honor rights, portrait rights, privacy rights, etc., and may also involve users' intellectual property rights and other property rights and interests, which are protected by the relevant provisions of the Personal Information Protection Law and the Civil Code.
From the perspective of Internet companies, these accounts may be related to the intellectual property rights of service providers, such as computer program copyrights, art copyrights, and patent rights. In addition, Internet companies collect a large amount of data, which also involves the data assets, trade secrets and other related rights and interests of the enterprises.
In Liu Yaying's view, restricting account transactions, or attributing account ownership to Internet companies, "is more in line with the regulatory requirements of the real-name system". She believes that through this division, the problem of minors evading the use of restrictions by purchasing accounts can be reduced, "It is a necessary and reasonable restriction, we should not only look at the attribution of interests on one side, but also look at the actual role it plays in solving social problems." ”
Mr. Chen (pseudonym), who has worked for a leading game manufacturer in China for a long time, said that from a technical point of view, it is not difficult to change the real-name authentication information bound to the game account, "In fact, it is just the basic information in the account that has been modified, and the difficulty is similar to changing the account name and password." ”
Mr. Chen took a leading domestic virtual asset trading platform as an example, and further explained that as far as he knows, the company has received many disputes caused by account transactions, including cases involving "circle numbers", "If you want to change the binding of an account transaction, the complicated point is not the technology, but the verification of whether the act of changing the binding itself is legal and compliant, and judging whether the identity of the rebinding is true, which is difficult for game manufacturers." ”
According to Mr. Chen, some companies have explored a relatively mature mechanism for how to regulate account transactions: instead of changing the ownership and use rights of accounts, they will migrate game data from different accounts. In this regard, Mr. Chen explained that the advantage of this is that it is less convenient, "You can understand it as transferring virtual property directly to another account. ”
04New regulations may restrict enterprises from forming "monopolies"
In Mr. Meng's view, stipulating that the ownership of the account belongs to the game company is a statement by some game companies. According to his observation, the attitude of game companies towards account transactions is not consistent, "At present, there are support and opposition of the top companies, and it may take time and space to improve the mechanism to resolve disputes." ”
From the perspective of game companies, Mr. Chen admits that these relatively negative attitudes are not only based on concerns about the complexity of the procedure and related legal risks, but also from a business perspective, "Most games have serious depreciation, for example, after you charge 50,000 yuan, your account can only sell for a few thousand or even hundreds of yuan in a year or two." ”
He further explained that account transactions between overly active players may affect the game's ability to recruit new players, and new players can buy old players' accounts at a low price to get a better gaming experience, rather than starting from scratch with the same amount of money, "lowering the entry threshold and recharge amount for players, which some companies are unwilling to see." ”
On the contrary, for games with good numerical balance and relatively low depreciation of in-game items and equipment, the self-owned trading platform represents a continuous and considerable income. Mr. Chen pointed out that trading accounts generally need to pay a handling fee, and companies with a large enough user base will be more inclined to create a platform by themselves to hold the profits of production, pricing, trading and other links in their hands, "which is equivalent to constantly making money, all the time circulating." ”
On December 22, 2023, the National Press and Publication Administration issued the Measures for the Administration of Online Games (Draft for Solicitation of Comments) to solicit public comments. Article 25 proposes that the same enterprise shall not operate online game currency issuance and online game currency trading services at the same time.
Screenshot of the Measures for the Administration of Online Games (Draft for Solicitation of Comments) (partial)
In Mr. Chen's view, this regulation is a restriction on the possibility of "monopoly" by enterprises - if game companies create virtual assets such as game props, equipment, and characters, if they are directly involved in the pricing and trading of these virtual assets, it is likely to cause regulatory problems. On the contrary, the introduction of other entities to intervene is more conducive to the formation of a situation of multi-party supervision and mutual constraints.
At the same time, Mr. Chen also believes that the above-mentioned draft has a certain positive effect on third-party trading platforms, "Some people will think that the trading platforms opened by game companies are not legal, and the third-party platforms are even more legitimate." ”
Mr. Chen told the Red Star News reporter that as far as his feelings in the industry are concerned, as a personal virtual property, the transaction behavior of the game account needs to be reasonably guided by the policy, and the relevant departments should also strengthen the governance of the illegal acts in it, "so that users can become living water, instead of saying that this account will be abolished if I don't play, which can also ensure the activity of the game and let the game industry continue to develop." ”
05Legal gaps in virtual assets
In Liu Yaying's view, improving the corresponding laws and regulations needs to be put on the agenda. Compared with personal property in the general sense, virtual assets exist in the network, and Liu Yaying believes that the ways and means of possession, use and income of such digital assets cannot be treated as a single asset.
According to him, virtual assets cover a wide range of areas, and audio recordings, video materials, and even a picture can be regarded as virtual assets. At the same time, these virtual assets are easy to be generated, copied, tampered with, and obtained, and Liu Yaying stresses that these characteristics will lead to "it is difficult to determine the ownership of virtual assets, it is also difficult to evaluate the value, and it is difficult to manage, preserve, store, and protect." ”
Based on the cases she has come across, Liu Yaying said that whether virtual assets are protected according to property rights, creditor's rights, intellectual property rights, or new types of property rights and interests still need to be clearly refined and deepened, "Some judgments believe that virtual assets rely on operators and are based on contractual rights to operators; ”
Another prominent issue is how and who will carry out the valuation of virtual assets. In cases involving the division and compensation of virtual assets, value is an important factor influencing the ruling. Liu Yaying said that according to her observations, the determination of the value of virtual assets is more difficult than that of physical property, "There are special appraisal agencies for the determination and evaluation of the value of physical assets, but for virtual assets, I have learned that there is no authoritative institution in China that can conduct an evaluation." ”
Ma Xiangning, a lawyer at Shanghai Shentong Law Firm, told Red Star News that according to her experience, the main difficulty in determining the value of virtual assets lies in the lack of a complete evaluation system, the lack of market value as a reference, and the need to refer to a variety of complex factors, such as personal dependence, intellectual labor, intellectual property, influence, etc.
Guo Siwen, a lawyer at Zhejiang Fawer Law Firm, said that there are multiple criteria in current judicial practice: the calculation is based on the official price at which the player buys it from the operator, the calculation is based on the cost of creating or acquiring the equivalent virtual asset by the game company, the calculation is based on the market price at the time of purchase of the virtual asset, and the valuation is carried out by a neutral institution.
Yan Wenkai, a lawyer at Jiangsu Xingao Law Firm, said that these existing virtual asset valuation standards have limitations in practice, "The transaction prices of the game market, especially in the secondary market, often fluctuate, and depreciation and appreciation are common situations, which will have an impact on the determination of value." In addition, in the view of lawyer Yan Wenkai, the user's investment in the game account includes not only visible investment such as recharging, but also intangible investment such as time and energy, which are all factors that need to be considered.
Lawyer Yan Wenkai emphasized that improving the relevant mechanism for determining the value of virtual assets is of great significance to relevant legal practice, "for example, in criminal cases, it is necessary to distinguish guilt and innocence according to the amount of loss, and this impact is very large." Lawyer Liu Yaying also said that the valuation of virtual assets not only has the needs of social and economic activities, but also has judicial needs, and she believes that the judicial authorities can find people or institutions who understand Internet companies, digital economy, and virtual assets from Internet authorities to conduct relevant value assessments, "so that the determination of value will be fairer." ”
The account trading platform on the front line of game account trading is also aware of the importance of value recognition. Mr. Cui, a practitioner of another game account trading platform, introduced that because there is no definite measurement standard for the value of game accounts, when enforcing the law against "recovery personnel", the public security organs in some regions cannot determine the punishment and need to be assisted by the platform to determine the value, but some price bureaus are currently unable to evaluate such virtual assets, "The amount specified in the contract will play a reference role, including chat records and payment records of transaction information, but it can only prove the willingness to trade, and cannot play a decisive role." ”
Mr. Meng's platform is trying to form a set of evaluation mechanisms that can provide greater reference value by establishing an industry mechanism. Mr. Meng told the Red Star News reporter that they are exploring ways to assist users in evaluating the value of trading accounts through AI, professional appraisers and other methods, "but now the price we have identified can only be used as a reference." ”
Mr. Meng revealed that they are also cooperating with a forensic appraisal agency, and according to a forensic opinion issued by Shandong Pinshang Judicial Appraisal Institute provided by him, on August 29, 2023, Mr. Meng entrusted the laboratory to appraise the account value of a mobile game. In this appraisal, national standards and industry standards such as the "Fixed Method for Discovery and Extraction of Evidence Data from Digital Equipment" and the "General Method for Scientific Appraisal of Electronic Data Forensics" were adopted. According to Mr. Meng, at this stage, such appraisal results can only be used as auxiliary materials for prosecution and case filing, so as to increase the success rate of case handling.
Red Star News reporter Zhou Weihao
Editor: Zhang Li, Editor-in-charge: Li Binbin
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