PLAYER REFUND CLAIMS
to refund EUR12,000 in losses from online gambling. 12 The court reasoned that the operator did not own a licence in Germany during the period in question and concluded that the gaming contract was void under sec. 134 German Civil Code in conjunction with sec. 4(4) IST 2012 i.e., the total internet ban. Other courts had already come to similar conclusions in individual previous cases. However, the Giessen judgment had a signalling effect with substantial consequences for private operators of gambling in Germany. Some two years later, operators active on the German market before the IST 2021 came into force are now confronted by a wave of player claims with more than 180 court decisions having been issued in Germany on the subject 13 and more to follow. Player claims have emerged as a continuing financial strain on the now largely licensed and therefore legal operators of online gambling, and will continue to occu-py the civil courts for years to come. By comparison, Austria has been at the forefront of litigation when it comes to player claims in terms of being a step ‘ahead’ of Germany in the development of case law and, arguably, displaying an even more extreme bias in favor of the player than German courts. As an example, the Supreme Court of Justice in Vienna ruled in November 2022 14 that an unregulated gambling operator must refund losses incurred by a player even if the player already had the “intention” to sue for losses at the time of participating in the game. 15 What is the relevance of loot boxes in the context of player claims? Another topic that is becoming increasingly important in the regulatory discussion is whether so-called ‘loot boxes’ offered in video games by publishers may fall under the ambit of gambling regulations. ‘Loot boxes’ are understood to be specific forms of in-game purchases or micro-transactions in a video game where “virtual boxes […] can be purchased for a fee and contain a random selection of variously rare virtual
items for a computer game” 16 . While there has long been general consensus in the German legal literature that loot boxes do not fall under the definition of gambling as defined in the IST 17 , there are now a growing number of opinions to the contrary, defining loot boxes as illegal gambling within the mean-ing of the IST under certain conditions. 18 A legal assessment of loot boxes by a German court is yet to made. But here, too, Austria is a pioneer. The Hermagor District Court decided in a judgment of 26 February 2023 (as yet unpublished) that offering loot boxes in a video game may amount to illegal gambling. 19 The subject of the proceedings were not just any loot boxes, but the digital card packs of well- known publisher Electronic Arts (EA) which can be purchased in EA’s critically successful FIFA football (soccer) game. The question arises whether games publishers and console manufacturers in Germany could now also face similar liability for operating loot boxes as gambling operators for previously unregulated operations. To answer this, it may be helpful to determine whether the legal understanding of gambling in Germany and Austria is the same or at least similar. ‘Gambling’ is legally defined in both countries as follows: Sec. 3(1) sentence 1 IST2021 (Germany) “A game of chance exists if, in the context of a game, a consideration is demanded for acquiring a chance to win and the determination of winnings is entirely or predominantly a matter of chance.” Sec. 1(1) Gambling Act (Austria) “A game of chance within the meaning of this federal law is a game in which the decision on the outcome of the game depends entirely or predominantly on chance.” At first impression, the German legal definition of gambling appears to be much more complex. However, the legal supplement regarding so-called ‘play-outs’ (‘Ausspielungen’) in Austrian law cannot be ignored in this context:
12 District Court of Giessen, judgment 21 January 2021, file no. 4 O 84/20, ZfWG 2021, 323 f. = BeckRS 2021, 7521. 13 Cf. https://www.anwalt.de/rechtstipps/urteil-tipico-muss-spieler-rund-377-000-euro-zurueckzahlen-209838.html. 14 Supreme Court of Justice of Austria, decision of 18 November 2022, file no. 6 Ob200/22p, BeckRS 2022, 34622. 15 Supreme Court of Justice of Austria, decision of 18 November 2022, file no. 6 Ob200/22p, BeckRS 2022, 34622 (para. 5). 16 Translated from German as per Nickel/Feuerhake/Schelinski, MMR 2018, 586 (586). 17 Cf. Schippel, ZfWG 2017, 481 (489); ders., WRP 2018, 409 (411); Ehinger/Schadomsky, K&R 2018, 145 (146); Nickel/Feuerhake/Schelinski, MMR 2018, 586 (589); Hopf, ZUM 2019, 8 (12). 18 Cf. Maties, NJW 2020, 3685 (3689 Rn. 35); Zimmermann/Franzmeier, ZfWG 2018, 528 (531). 19 District Court of Hermagor, judgment of 26 February 2023 – the judgment has not officially been released at the time of writing. The authors are aware that the judgment has not been appealed.
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IMGL MAGAZINE | APRIL 2023
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