Legal Opinion: Can You Get a Refund for Lag?

Play games online, and you’ll suffer lag. With each of us living an entire ocean away from the nearest American servers, we’re lucky to get under 200ms latency.

Our most recent lag debacle was Diablo III. While touted as being completely playable for Australians, when it launched the problems became obvious. Yellow and red spikes have been common, making play difficult at times. Other countries also suffered, even those with local servers. In Korea, the situation got so dire that the Korean Fair Trade Commission raided Blizzard’s offices to find evidence about whether enough servers were provided for smooth play.

In response to these problems, some gamers have sought a refund. This is just the beginning, too: the problem will get worse as more games come online. So today we’ll look at when lag entitles you to a refund.

Reasonably fit for play

The Competition and Consumer Act (formerly the Trade Practices Act) entitles you to seek a refund if the product or service is not reasonably fit for the purpose you bought it. With physical goods this is easy—a shoe, for example, shouldn’t fall apart.

‘Reasonably fit’ for games hasn’t been defined yet. However, I’d argue that constant yellow latency fails the test (anything over 300ms). Games are designed to work at green latency, and if you can’t achieve this regularly, then playing the game is somewhat like wearing a shoe and having the heel fall off mid-step. You can still wear the shoe, but walking becomes uncomfortable.

These rights of yours as a consumer override anything in the game’s EULA. Even though Blizzard says that a refund will only be granted if you don’t install Diablo III, this is incorrect. Regardless of what the EULA says, you are entitled to seek a refund if you often struggle with yellow latency.

What about overseas companies?

The Competition and Consumer Act applies to companies trading in Australia. With all publishers being overseas-based, whether our laws apply or not depends on the size of their Australian presence. It’s reasonable to argue that Blizzard trades in Australia. They even have an Australian Business Number: 90 054 096 883.

They provide goods to Australian retailers. They also supply Australian-specific items, like Australian versions of account authenticators. As such, they’re bound by our laws, regardless of where their website comes from.

On the other hand, Funcom is not bound by our law. They don’t have any Australian presence, and when you play Age of Conanor The Secret World, you’re buying a service from a Norwegian business.

Getting a refund

If everything said above applies to your case, then the Trade Practices Act entitles you to cancel your purchase. The seller is then expected to honour your decision and refund the purchase price. This means that getting a refund is a private dispute.

As such, your first option is to write to the company, seeking to cancel your purchase and ask for the refund. Generally, if you write respectfully, and highlight your rights, you’ll probably get a refund. For most companies, paying a refund is cheaper than getting lawyers to advise them on the merits of your claim, especially if the buyer knows what they’re talking about.

If this fails, you can complain to the Australian Competition and Consumer Commission, but they’ll probably tell you that you need to start private legal action. However, this would be the end of the line for most people. While it would be amusing to see Blizzard sued in the Small Claims Court for $80, it’s probably not worth it, as this would cost you more than $80.

It all comes down to money

For most large publishers, everything comes down to money. We lack local servers for many games because they would cost more than the publisher would gain. Star Wars: The Old Republic is the exception, but this also comes down to money: it’s a way to steal buyers away from their main competitor—World of Warcraft.

If you want lag-free, local servers for games, then what’s needed is simple: all Australians must refuse to buy overseas-based games. Obviously, this is a tall order. As a huge Diablo fan, I myself won’t do this. Spending intimate weekends with Kellygrrl the Demon Hunter is better than showing nationalistic solidarity.

The next-best action is to complain. Even if you don’t seek a refund, simply starting a game petition whenever you encounter latency problems will keep the issue on the radar. If enough Australians do this, such regular petitions may prompt the publisher to take action. Maybe it’s self-entitled, but we shouldn’t have to suffer through lacklustre play when no other options exist.

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Tags: diablo iii, legal opinion