Legal Opinion: Bait and switch… with a mankini

The Secret World

By on April 17, 2014 at 8:15 pm

This April Fool’s Day, Funcom released the mankini into The Secret World. Several days later, those who bought it were emailed that it was just an April Fool’s joke. Every purchaser was refunded in Funcom shop points, and the mankini removed from their characters.

This provoked considerable outrage among the players. I mean, what the hell, Funcom. Leaving aside the “artistic merits” of the mankini (though anything is better than rainbow space lasers), this was illegal. You don’t just encourage someone to buy something, take it away, and then refund with a completely different currency they may have no use for after the incentive has gone away. That’s bait and switch.

After this was done, there was silence from Funcom, and speculation from the players. Many suspected some kind of Borat trademark claim, and I was all geared up to write Legal Opinion: Is the Mankini Trademarked? But then the truth came out: Some higher-up at Funcom didn’t like the comedy of the mankini in what’s meant to be a serious horror game, and had it erased from existence.

This is still, however, illegal.

The Secret World is a good game

Let me start by saying I love The Secret World. In my opinion, best MMO on the market. And what makes this game the best is indeed the quality of storytelling and atmosphere you won’t find anywhere else. Just watch Leliana:

Which is why the mankini was removed. According to game director Joel Bylos:

“To be clear: the Mankini outfit (and the wetsuit) was definitely an April Fool’s joke, and it was always my intention to have them be available for a limited time only in the store. However, it was never my intention to pull them from players who actually bought these items.

Unfortunately, there was a miscommunication between my team and Funcom management on how this was to be handled. Funcom management feels strongly that the Mankini outfit goes against what The Secret World intellectual property (IP) is all about and they did not want this item to stay in the game permanently. We all agree on the fact that The Secret World should be the best urban contemporary horror MMO out there, and they want to make sure that everything we bring into the game stays true to the setting and the atmosphere we have created – however it is safe to say that there is sometimes disagreement on nuance.

For that reason, Management made the decision to pull it from the game entirely.

I do not think we should have pulled it from those of you who had already purchased it. I have made that very clear, and I have also voiced your opinions to everyone involved. I am making sure we take every step necessary to make sure we do not end up in a similar situation again.”

Now I can understand the actions of management here. Borat is not exactly zombie material. And I can understand Joel, as well. Many female players have complained that women got degrading outfits, while men were all covered up. The joke was a promise to do better.

However, the question that remains is whether fixing the IP can really be grounds for the bait and switch that happened, and was the given refund enough?

Bait and switch

Everyone knows what bait and switch entails. But as a quick recap, it’s when you’re enticed to buy something, but then that something is removed and substituted for something else, usually more expensive. Here, enticing players to buy the mankini then substituting it for Funcom points was a textbook example.

Although the mankini wasn’t substituted with a higher priced product as in a classical switch, the switch happened because  many players would not have bought Funcom points had the mankini not been advertised. The transaction would not have occurred. This is illegal in just about every country The Secret World is sold in. Yes, Funcom customer service did provide cash refunds if players asked, but that does not excuse the initial, misleading act.

This is strengthened by customers’ prior experience with the store. Although the release of the mankini on April 1 was a bit of a hint that it wouldn’t be around for long, no item has ever been recalled and deleted from player accounts. The mankini advertisements were no different to those for permanent items.

If the item was truly intended to be available for only a limited time, this should have been noted clearly. Both Australian and American law forbids otherwise. In Australia, enough stock must be made available for a reasonable number of sales, or a notification of stock levels must be made. Also, stock shouldn’t self-destruct: Items must be fit for the purpose they were bought.

In Australia, enough stock must be made available for a reasonable number of sales, or a notification of stock levels must be made.

What about the Terms of Service?

Yet we also must consider if you give up all their legal rights to anything upon purchasing a game. Some of the terms of service try to contract out of this sort of liability:

Funcom shall not be liable in any manner for the destruction, deletion, modification, impairment, hacking of, or any other damage OR LOSS of any kind CAUSED to ANY OF THE game assets.

And there’s the usual blah blah about how Funcom is not liable for anything, and how they own all the game assets.

Unfortunately for game companies, the terms of service do not allow them to contract out of false advertising laws. On purchasing Funcom points, an entirely new contract is made between you and the company for buying points in response to an advertisement.

You’re entitled to rely on this new contract and expect that what you just did is bona fide. It is a separate transaction not covered by the original terms of service. If you were falsely enticed to spend dollars you wouldn’t have, they can’t just wave a generic disclaimer at you. EULAs just don’t stretch that far.

A worrying new trend

Now, we should close by saying this isn’t limited to Funcom. Guild Wars 2 did almost the exact same thing: Customers who previously bought town clothes were informed that ArenaNet was doing away with the whole town clothing system and would be removing these items from the players with refunds in gems, their own in-game currency.

ArenaNet is better covered than Funcom, since when originally offering the items they did not intend to recall them one day. Obviously, product recalls happen, and can still happen in a game. What got Funcom was that the intention was always to make the mankini limited, but this was not made clear on the advertisement.

So I can’t say that ArenaNet hit the false advertising minefield. Nor can I really say that Funcom’s $10 false enticement is worth getting up in arms over. But it brings up the question of how long should games be expected to provide access to your store purchases. Is it OK that they can be removed on a whim, and is in-game currency enough compensation? I’d like to hear your thoughts.

8 comments (Leave your own)

Wait… wat?

I came in here expecting guns.

Also, stock shouldn’t self-destruct

Oh please tell me this is explicitly stated somewhere in our consumer laws. I want this to be true.

 

No EULA or ToC can prevent bad press/social media. I wasn’t under the impression that Funcom were in an overly favourable position in the public eye as it was. I think ultimately the planning just wasn’t there. If management decided prior to have it pulled, it could have been worked into a quest system like every other game. It could be reading into it too much, but one could equally question whether this was done intentionally.

That said, The Secret World is definitely an amazing game, and worth playing through at least once to experience the story/atmosphere. Hopefully people actually get their facts straight and realise this was Funcom’s decision, and attribute it to them instead of the game itself.

 

ooshp: Also, stock shouldn’t self-destruct

Oh please tell me this is explicitly stated somewhere in our consumer laws. I want this to be true.

My first thought was tungsten light globes. If I thought hard, I’m sure I could come up with a few other examples.
Also: weird ghost things, werewolves being cut up by french ladies with chainsaws, odd conversations… What is this game? How do MMOs have stories/cutscenes?
Might have to give this one a go.

 

tacitus42,

It’s a fun game. No subscription fee either.

 

The Guild Wars 2 town clothing system has been removed, but purchased items are still useable. Instead, people are able to wear these costumes as armor in combat. Some items are able to be viewed free as outfits…individual pieces may require a transmutation charge, but I have not done research into it. In any case, you can get 5 free transmutation charges anyway, and if you had heaps of the transmutation stones, they convert 3:1 for regular stones and 1:1 for fine stones. If people were refunded anything at all for this, they are walking away with free stuff because what they bought is still useable.

 

If I buy a TV at a store and it stops working after a couple of days, and the store would not give me a replacement or refund, only store credit, that would be OK?

 

submariner:
If I buy a TV at a store and it stops working after a couple of days, and the store would not give me a replacement or refund, only store credit, that would be OK?

Store credit can only be given if they are at a disadvantage because of their own policy that is independent from – but still adhering to – concumer law. By which I mean, if you bought a TV and decided you did not want it or it did not do somethign that you wanted it to do that you were too silly not to ask about (in other words: the sales-person was not to blame) then if the company you are interfacing with says that because of their own policy you are able to swap out for credit and only credit then you have no choice because if their internal policy did not exist, consumer law would tell you to suck it up and stop making life difficult for retailer.

However: if the product broke within its warranty it becomes much more murky. You are only applicable for your money back if they cannot offer a replacement, but you are not applicable for money back if they offer to repair and/or replace it and you decide to get all huffy and demand money back. Offering a similar product that is better than the one you have for no extra cost is a weird one. Remember: you bought a product, and as long as the company is doing everything they can to make sure that that product works exactly as you were told it would then you are all dandy. So if you bought a 24″ monitor and they gave you a 24″ IPS monitor from the same manufacturer as a replacement then I do not see how you could possible expect to have a claim against them.

In short: {shrugs}…

 
Patrick Vuleta

Yeah it can get a bit different if you bought the TV under your own free will.

 
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