PLAYER REFUND CLAIMS
Sec. 2(1) nos. 1-3 Gambling Act (Austria) “Play-outs are games of chance (no. 1) that are organized, offered or made available by a company and (no. 2) in which players or others make a financial contribution in connection with participation in the game of chance (stake) and (no. 3) in which a financial contribution is promised by the company, players or others (winnings).” Based exclusively on the wording of the regulations and the associated characteristics of ‘chance’, ‘stake’ and ‘winnings’, there is a quite similar understanding of the legal classification of games of chance. There is no question that loot boxes – regardless of the country in which they are ultimately purchased – can be assumed to involve an element of chance, for example, by way of the random allocation of cards in card packs. However, at least in Germany, there are further aspects that need to be considered in connection with the character-istics of ‘fee’ and the ‘chance of winning’ pursuant to sec. 3(1) sentence 1 IST 2021. The first-instance ruling from Hermagor did not have to take these aspects into account for territorial reasons. However, the court took a pragmatic approach in its decision. In addition to a chance dependency, according to the court’s opinion, the sale of loot boxes “also constitutes a pecuniary benefit within the meaning of the Austrian Gambling Act, because the digital football players are traded on a secondary market and thus a profit can be made” 20 . Whether the court’s rationale can be transferred directly to the German understanding of ‘gambling’ is doubtful at present. For example, the requirement of a ‘total loss’ in the German understanding of the term should
be remembered, and is not generally the case with loot boxes. 21 The question as to what a publisher or console manufacturer must do to prevent prohibited secondary markets and under what circumstances exculpation is possible 22 is also likely to occupy the courts in the future. Final thoughts In addition to the legal ramifications of a court decision, it is always possible for the prover-bial ‘regulatory pendulum’ to swing back against the industry as soon as the issue attracts more attention from policymakers, regulators and the media. Games publishers may be aware that political resistance is shaping up in various countries, with bans on certain types or aspects of loot boxes being considered, as is already the case in Japan, Belgium and the Netherlands. Since German civil courts have a tendency to side with players in player claim cases, it is not far- fetched to assume that they could follow a similar approach in a loot box refund case, in particular, if the issue continues to attract more attention in public and politics. In light of these recent developments, it may be prudent for games publishers to review their approach to loot boxes and other microtransactions in video games, and to adjust their design so as to mitigate the risk of falling within the scope of gambling regulations. As mentioned above, the revenue figures of in-game purchases in Germany are massive – EUR4.24 billion in 2021 23 . If the trend set in Hermagor continues and reaches Germany, we may well see a new wave of lawsuits from gamers against publishers and console manufac-turers in the coming years. Taking a more risk-averse approach when it comes to the risk of player claims – or rather ‘gamer claims’ – at this early stage may be worthwhile.
DR. MATTHIAS SPITZ Partner
DR. ANDREAS WOERLEIN Gaming and Esports Lawyer MELCHERS Law firm For information contact +49 (0)6221 1850 - A.Woerlein@melchers-law.com
20 See beck-aktuell, 3 March 2023, https://rsw.beck.de/aktuell/daily/meldung/detail/oesterre- ichisches-gericht-stuft-lootboxen-als-illegales-gluecksspiel-ein. 21 Cf. Schippel, WRP 2018, 409 (410); Nickel/Feuerhake/Schelinski, MMR 2018, 586 (588); Seckelmann/Woerlein, ZfWG 2021, 339 (341); with a dissenting opinion: Rehder, ZfWG 2021, 358 (362 f.). 22 Cf. Maties, NJW 2020, 3685 (3689 Rn. 37). 23 See https://www.business-on.de/gamingindustrie-womit-wird-der-meiste-umsatz-generiert.html.
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IMGL MAGAZINE | APRIL 2023
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