Not everybody is laughing following Funcom's April Fools joke on its players.
By Patrick Vuleta 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.
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.