Commercial use of Discord: A legal guide

Introduction

Discord has become a popular platform for gamers, communities, and most recently professional teams since its inception in 2015. The ability to bundle text, voice and video communication into one tool makes Discord an attractive option for many users. But can Discord also be used commercially? And what legal aspects need to be taken into account? In this blog post, I’ll try to address the most important points.

Terms of use and policies

An important first step in addressing the commercial use of Discord is to review the platform’s terms of use and community guidelines. These documents contain the rules that must be followed when using Discord. Particularly in the case of commercial use, close scrutiny and, if necessary, legal advice is advisable to ensure that the intended use is compatible with Discord’s terms and conditions.

Discord’s Terms of Use provide a general overview of the agreement between users and Discord regarding the use of the Services. You mention that additional conditions may apply to certain products or services¹. If you are using Discord on behalf of a business or legal entity, you must indemnify Discord and its agents against any claims, liabilities, damages, and costs (including reasonable legal and accounting fees) relating to (a) your access to or use of the Services, (b) your content or (c) indemnify you for your breach of these Terms².

In addition, Discord has specific terms for paid services and monetization that apply to purchases or sales made through Discord. The “Paid Services Terms” apply to everything bought or sold through Discord’s supported purchase flows and supplement the General Terms of Use

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. The “Monetization Terms”, on the other hand, apply to the things you sell through Discord and set out the legal obligations between Discord and users

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Discord also has a server monetization policy that allows users to support themselves and their communities through monetization. In order to monetize servers and content on Discord via server subscriptions, server store and other creator revenue products, creators and their servers must comply with the requirements and restrictions listed therein⁵.

Thus, commercial use of Discord may be permitted depending on the type of use and compliance with the relevant terms and policies.

Privacy

Another essential aspect of the commercial use of Discord is data protection. During communication and interaction via the Platform, personal data may be generated, the handling of which is subject to the provisions of the General Data Protection Regulation (GDPR) and other relevant data protection laws. It is of great importance to design data processing in accordance with the legal requirements and also to fulfill the necessary information and consent obligations.

The GDPR requires that when processing personal data, appropriate safeguards are in place to ensure the privacy of the data subjects. This also includes the obligation to conclude an order processing agreement (AVV) with service providers who process personal data on behalf. Such a contract regulates the responsibilities and obligations of both parties and ensures that data protection is guaranteed.

A specific issue with regard to Discord is the lack of a separate order processing agreement (AVV). Discord does not yet offer AVV, which could be a serious problem for companies that want to use the platform commercially. Without such a contract, it is difficult to ensure compliance with the GDPR and companies could expose themselves to legal risks. Failure to comply with the GDPR may result in significant fines.

However, despite the lack of AVV, there may be opportunities that meet legal requirements. An interesting aspect is that every “customer” of a provider who uses Discord also necessarily becomes a customer of the provider of Discord. During the general registration to Discord, the user is informed about data protection and must agree to Discord’s privacy policy. This consent could be considered as a form of consent to data processing that complies with the requirements of the GDPR.

However, the interpretation of this aspect can be complex and it remains unclear whether this approach is sufficient to meet the requirements of the GDPR. Therefore, it is crucial that companies that want to use Discord commercially are aware of this challenge and take appropriate measures. Legal advice is essential here to understand the risks and take appropriate protective measures. It could also help identify alternative approaches or platforms that enable legally compliant use.

Copyright: On a Discord server, it is easy to share content that is subject to copyright. Be it music, videos or other media content, copyright regulations must always be observed. Misuse can quickly lead to legal consequences, both criminal and civil.

Contracts and liability

The clarification of contractual relationships and liability issues is particularly important in the commercial use of Discord. Here, it is important to regulate relationships with users and, if necessary, also with business partners in a clear and legally secure manner in order to avoid unpleasant surprises. This could be done through appropriate user agreements, data protection declarations and, if necessary, separate contracts with business partners. These documents should clearly define the rights and obligations of all parties to avoid misunderstandings and ensure legal compliance. The regulations should cover, among other things, the handling of personal data, copyrights and other protectable rights, the use of content on the platform, and liability for any violations of the law.

In the course of the commercial use of Discord, trademark law should also not be ignored. When naming and advertising a commercially used Discord server, trademark law must be observed. An infringement of third-party trademark rights can also lead to considerable legal and financial consequences. It is therefore advisable to carry out a trademark search in advance to ensure that the chosen name and the appearance of the server do not infringe any third-party trademark rights. Both national and international trademark rights should be considered, depending on the scope of the planned activities. The relevant norm here is the German Trademark Act (MarkenG), which regulates the protection and enforcement of trademark rights in Germany.

Furthermore, it should also be noted that the commercial use of Discord may also raise other legal issues, for example in the area of competition law. Unfair competition or misleading advertising can quickly lead to warnings and legal disputes. It is therefore important to comply with the legal requirements here as well, such as those set out in the Unfair Competition Act (UWG).

Own GTC

In the case of own commercial offers via Discord, such as the sale of subscriptions, bots, software or services, the creation of own general terms and conditions (GTC) is a central building block. Discord’s TOS primarily define the relationship structure between users and Discord itself. However, they do not address the specific relationships between users and providers of commercial offers on the platform. This is where the company’s own GTCs come to the fore, serving as a crucial instrument for clearly and unambiguously defining the legal framework of these business relationships.

The company’s own GTCs provide a clear basis between providers and customers by detailing the rights and obligations of both parties. They help minimize misunderstandings and disputes and promote transparent communication about the expectations and obligations associated with the products or services offered. One of the essential functions of own GTCs is the legal protection of providers. By specifying limitations or exclusions of liability and regulating the conditions under which transactions are conducted, they provide a solid basis for reducing the risk of legal disputes.

The transparency created by own GTCs can strengthen customer confidence. It provides customers with clear information about the provider’s business practices and terms, which can ultimately lead to improved customer satisfaction and stronger customer loyalty. In addition, separate GTCs enable providers to legally safeguard and explain individual business models and practices. This is not possible with Discord’s standard T&Cs, as they are not tailored to the specific needs and offerings of providers.

The inclusion of regulations on important consumer rights, such as rights of withdrawal and return, is another relevant aspect. They are particularly important in online commerce and should be clearly defined in the customer’s own GTC.

It is also important to make sure that your TOS do not conflict with Discord’s Terms of Service. Such a discrepancy could lead to conflicts and complicate the use of the platform for commercial offers. Therefore, it is advisable to carefully design the T&Cs to ensure conflict-free use of the platform while effectively protecting one’s own commercial interests.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.