China News Service, September 6th (Xie Yiguan, a reporter from China News and Finance) With the rapid iterative upgrade of Internet technology and terminals such as computers and mobile phones, online games have gradually developed into an emerging form of mass entertainment, and are widely popular among young people. , and related problems have become increasingly prominent.
Statistics show that in the first half of 2022, the National Consumers Association received 18,075 complaints about online games, a year-on-year increase of about 22.26%.
According to the "Investigation Report on Consumer Cognition and Lead Collection of "Unfair Standard Terms", the China Consumers Association invited the lawyers of the China Consumers Association to comment on the unfair standard terms in the field of online games that consumers have strongly reflected on.
Unfairly restrict the use of accounts and virtual items
Example: If you do not use your game account for 7 consecutive days, the company has the right to take measures such as deletion of the account and the game data and related information under the account without prior notice.
Comments:
Generally speaking, the data in the network platform can be divided into the whole data resource and the single data individual.
Under different circumstances, the data rights and interests enjoyed by the network platform party are different.
In terms of data resources as a whole, online game operators enjoy competitive rights, but online game operators do not enjoy absolute exclusive rights for a specific single user data, especially online game accounts have property interests and general commodities. property, which should belong to the virtual property of the network.
my country's "Civil Code" has included virtual property into the scope of legal protection. In the "Opinions on Providing Judicial Services and Guarantee for Accelerating the Improvement of the Socialist Market Economic System in the New Era" issued by the Supreme People's Court and the National Development and Reform Commission in July 2020 It also emphasized the need to "strengthen the protection of new rights and interests such as digital currency, online virtual property, and data."
Therefore, online game users have rights and interests in the created accounts, characters and acquired virtual properties, and such rights and interests are protected by law.
If the time interval between online game operators recovering accounts, deleting specific data is too short, or taking disposition measures without prior notice, it is unfair and unreasonable for users who have the right to use accounts, and the legitimate rights and interests of users are violated. .
For example, in order to maintain normal business order and reduce the pressure on servers, online game operators should set a reasonable retention period and design a sufficiently obvious reminder process.
The actual effect of the game props does not match the propaganda or the operator is exempted from liability when the operator unilaterally changes the game content
Example: You agree that the company may adjust, update or adjust any content or constituent elements in the game (including but not limited to characters, game equipment, art design, performance and related data settings of game equipment that have been purchased or used by consumers, etc.). optimization, and will not pursue any legal responsibility of the company.
Comments:
According to the law, operators should ensure that the actual quality of the goods or services they provide is consistent with the indicated quality status.
The game props, etc. sold by online game operators to consumers should be consistent with the publicity and display, and should not be based on the actual purchase by consumers, otherwise, the agreement between the two parties will be in an uncertain state.
Therefore, some online game operators stipulated in the agreement that the "final effect is subject to the in-game" clause violated relevant laws and regulations.
In addition, some online game operators even require consumers to give a general authorization, agreeing to the operators to arbitrarily unilaterally change the design and performance of the game products that consumers have purchased, without pursuing any legal responsibility, depriving consumers of the right to choose, fair trade, etc. , seriously infringing on the legitimate rights and interests of consumers.
Operators may not unilaterally or collectively authorize consumers to agree to the terms of such agreements.
Exempt online game operators from liability caused by their own faults
For example: due to game software bugs, version update defects, etc., your account data or game data such as game virtual props is abnormal, the company has the right to restore the game account data to the original state before the abnormality occurs, and does not need to bear any responsibility to you.
The company shall not be liable for any damage or request (including but not limited to personal injury, privacy leakage, monetary loss, etc.) caused by the user's use of this product and service (including but not limited to negligence or any reason).
Comments:
According to the law, the perpetrator infringes the legitimate rights and interests of others due to his fault, and should bear the tort liability.
In the standard terms, the online game operator's exemption from the responsibility caused by his own fault is actually a disguised and unreasonable aggravation of the user's responsibility, and the adverse consequences and responsibilities that should be borne by the operator are imposed on the user through the "Overlord Clause". Infringing on the rights and interests of users, it belongs to the invalidity of the standard terms of "the party providing the standard terms unreasonably exempts itself from its own responsibility".
Exempt online game operators from their own legal obligations and responsibilities
Example: The company is not responsible for any products, information or materials purchased or obtained by users through advertisements and displays published by the company.
Comments:
When online game operators publish advertisements on their own through game platforms or accept others' entrustment to publish advertisements, they shall undertake corresponding review and management obligations.
Online game operators attempt to use the standard terms provided by them to exempt the company from its own legal obligations and responsibilities, intending to prevent consumers from pursuing any legal responsibility, which are invalid terms.
Online game operators cannot exempt themselves from their responsibilities in the form of standard clauses. Common ones include exempting their own information security responsibilities, exempting themselves from their obligations to review and report illegal information, and exempt themselves from their obligations to prudently inspect advertisements.
Online game operators forcibly exclude user rights
For example: Exclude the intellectual property rights owned by the user for the content created by the user: All the intellectual property rights of the text, pictures, audio and video materials created by the user in this product belong to the company. Without the permission of the company, the user shall not or authorize any The third party uses directly or indirectly in any form.
Another example is the exclusion of user privacy: the platform has the right to disclose all usage information generated by the user in this product to other users, and the user confirms that the aforementioned usage information does not belong to personal privacy or personal information that cannot be disclosed.
Comments:
According to the law, the party providing the standard terms cannot exclude the main rights of the other party through the standard terms.
Online game operators have certain rights of commercial autonomy to realize their own commercial interests, but intellectual property rights, privacy rights, etc. are the main rights that users should enjoy. Excluding such rights of users obviously belongs to the operator's arbitrary expansion of commercial autonomy. Boundaries shall be void clauses.
Online game operators have the right of unilateral or final interpretation
Example: The final interpretation right of the game content and the content of this agreement belongs to the company.
Comments:
According to the law, if there are two or more interpretations of the standard terms, an interpretation that is not conducive to the party providing the standard terms should be made.
Because the standard contract terms are drawn up unilaterally by the operator without consulting the other party's opinions in advance, the principle of fairness should be followed when drafting, and the standard contract terms should be made as clear as possible.
The online game operator, as the provider of the online game user service agreement, should make an interpretation unfavorable to the party providing the standard terms if there is a disagreement with the user's understanding of a certain clause.
Therefore, the standard terms that stipulate the operator's right to unilaterally interpret the game content and the content of the service agreement or the final right of interpretation violate the prohibitive provisions of the "Civil Code" on standard terms, and are invalid terms.
In the process of contract performance, if there is a dispute over the interpretation of the terms of the contract between the two parties, the parties to the contract should jointly negotiate and resolve it, rather than arbitrarily determined by one party, nor should standard terms be used to exclude consumers' right to interpret the terms.
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