Do Free2Play games violate the Pricing Ordinance?

As mentioned in the previous article, many games that use Free2Play as a distribution model may also be in breach of Section 3a UWG in conjunction with Section 1 para. § Section 1 para. 1 p. 1, paragraph 6 p. 1 Price Indications Ordinance.

Pursuant to Section 1 para. 1 PAngV are of course also obliged to specify the total price of Free2Play games. If a comprehensive total price cannot reasonably be calculated in advance due to the nature of the goods or services (in all due to the time and consumption dependence of individual price components), they cannot and must not be included in a uniform final price.

In this case, however, the type of price calculation must be indicated and the price parameters to be used must not only be specified on a flat-rate basis, but must also be quantified. Insofar as this is not directly reflected in the wording of Paragraph 1(1) of the 1, p. 1 PAngV, however, according to the current case law of the BGH, this is to be determined by an interpretation of Section 1 para. 6, p. 1 PAngV on the basis of Article 7 IV lit. c UCP Directive (BGH of 14.01.2016 – I ZR 61/14, WRP 2016, 581 – Wir helfen im Trauerfall).

In many games you can buy a digital currency or special items for real money in the shop. Since consumption-relatedfactors are often decisive here, it is of course usually not possible to indicate final prices at the conclusion of the contract. However, Free2Games could easily provide information on price parameters, even at the time of conclusion of the contract.

The relevant time for the conclusion of the contract and the fulfilment of such price information obligations is not only given when the individual player acquires digital counterparts or currencies for real money during the game, but the relevant time is the registration/installation or startup process following the download of the game. At this time, the relevant contract between the game publisher/developer and the player usually takes place.

At this time, however, developers regularly, if at all, inform players only in their terms of use, i.e. “in the fine print”, about the fact that the game allows to buy virtual money and virtual goods. Information about the price parameters is usually not provided.

On the contrary, the Terms of Use often even provide that the pricing of virtual items or currencies is subject to change without notice.

This underfairness is also a noticeable act (which is a prerequisite for a UWG infringement), since the providers deliberately apply it to being price-transparent in their business model and thus often have a particular gravity of the act. Since this distribution model is also about a conscious paradigm shift in the gaming industry (if it has not already been completed), there is a considerable risk of imitation, provided that anti-competitive designs of the Free2Play model are not prevented. to become.

Many of the frequently encountered designs therefore do not meet the requirements of Section 1 para. 6 PAngV, in particular not the clarity of prices and such conduct, would therefore be to be qualified as unfair under Paragraph 3a of the UWG.

In this legal question, too, as in the constellation from my parallel article, it naturally depends on the specific arrangement. In many cases, however, the practices are quite worthy of criticism, both from a legal point of view and in terms of marketing. This question, like the Lootbox issue, is also subject to a fierce discussion and it is by no means absurd to assume that, in the event of particularly blatant misconduct by some developers, warnings between competitors will follow next year. It should therefore be the own game, the GTC and also the concrete design of the process subject to a critical look and in case of doubt a specialist should also risk a second look.

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.