Loot box regulation
the packs could be opened and acquired separately from the virtual soccer matches. 11 Moreover, it stated that “they are a part of a game of skill and add an element of chance to the game” because the vast majority of the FUT packs are obtained in an in-game environment by participating in matches. 12 Thus, the Division relied on the fact that virtual soccer matches in FIFA provide the predominant means by which FUT packs are obtained, and that playing such matches requires skill, dexterity, and experience. IMPLICATIONS OF THE FUT RULING At first glance, the Dutch EA case may seem like good news to game publishers that increasingly employ loot box/gacha mechanisms in their newest releases. However, this case may be one with only narrow application limited to the facts and claims alleged in this instance. As critics point out, the KSA’s argument was not that the FIFA game as a whole was a game of chance within the meaning of the Act, but rather, the opening and acquisition of FUT packs constitute a separate game with gambling elements. As such, the Dutch EA case does not necessarily render loot box mechanisms themselves legal, but merely holds that loot boxes that clearly form only part of a game of skill when viewed as a whole would not automatically be deemed gambling. Accordingly, the Dutch courts leave open the possibility of games played solely to open and obtain loot boxes and trade their contents as violative of the Act for being a standalone game of chance. Hence, the
legality of loot box mechanisms is still subject to a case- by-case assessment on the merits; for instance, how the mechanism is structured within the game, and whether skill or chance is predominant in the game as a whole. Meanwhile, game publishers are still treading carefully when releasing their latest games. On June 2nd, 2022, Activision Blizzard launched its latest massively multiplayer online role-playing game (MMORPG), Diablo Immortal , but confirmed that it will not be releasing the game in the Netherlands and Belgium because of “the current operating environment for games in those countries.” 13 While the announcement does not expressly cite loot box regulation as the reason behind its decision, a customer support email reported on Reddit corroborated such speculation from the gaming community. It read as follows: “Players in the Netherlands and Belgium will not be able to install Diablo: Immortal due to the countries’ gambling restrictions. The lootboxes in the game are against the law in your country.” Currently, in Belgium, the Gaming Commission explicitly includes certain types of loot boxes within the term, “games of chance.” 14 Paid loot boxes or loot boxes with wagers constitute unregulated gambling under the Gaming and Betting Act that may subject game players to criminal prosecution. To comply with the Act, several game developers have altered the structure of their games when launching them in Belgium. For instance, EA stopped selling FIFA points that may be used to purchase player packs 15 while Blizzard removed paid in-game loot boxes
11 Neal, C. (2022 March 10). Dutch court says EA lockboxes didn’t violate region’s gambling law, reels back €10M fine from 2019. Massively Overpowered. https://massivelyop.com/2022/03/10/dutch-court-says-ea-lockboxes-didnt-violate-regions-gambling-law-reels-back-e10m-fine-from-2019/. 12 Van Neck, R. (2022 March 15). FIFA 22 loot boxes no longer regarded as gambling in the Netherlands as ban overturned. Media Writes. https://mediawrites.law/fifa-22-loot-boxes-no-longer-regarded-as-gambling-in-the-netherlands-as-ban-overturned/#page=1. 13 Porter, J. (2022 June 1). Diablo Immortal skips Dutch and Belgian launches and loot boxes might be to blame. The Verge. https://www.theverge.com/2022/6/1/23149771/diablo-immortal-loot-boxes-belgium-the-netherlands-gambling. 14 Vlaemminck, P. & Verbeke, R. (2022). The Gambling Law Review: Belgium. The Law Reviews. https://thelawreviews.co.uk/title/the-gambling-law-review/ belgium. 15 Tassi, P. (2019 January 29). EA Surrenders In Belgian FIFA Ultimate Team Loot Box Fight, Raising Potential Red Flags. Forbes. https://www.forbes.com/sites/
40 • IMGL Magazine • November 2022
Made with FlippingBook flipbook maker