Enforcement Alert: German Consumer Rights Groups Targeting Games (Again)

German law may not have class actions to facilitate enforcement of consumer protection standards, but her consumer watchdog groups are empowered to assert claims and seek injunctive relief against (alleged) violations on an abstract level – individual consumer complaints are not even required. In recent times, these consumer organizations have put a considerable focus of their activities on the games industry again.

Broad range of consumer-related issues

The groups have standing to call companies out on a wide variety of perceived breaches. Recurring allegations in cease and desist letters we have seen this year include

• use of unenforceable provisions in terms of use
• misleading or unclear statements in advertising for apps, subscriptions or in-app purchases
• direct purchase exhortations targeted at children
• missing mandatory information in app store product descriptions and websites
• non-compliant purchase flow and incorrectly labelled purchase buttons, and
• violations of privacy and youth protection law.

While the law is generally quite clear around formal information requirements, the question of what exactly constitutes a misleading practice in the context of an online or mobile game is hard to answer, and jurisprudential guidance is often absent or contradictory. The same goes for the question when a game must be considered as “targeting children”.

This permits consumer watchdog groups to interpret the applicable statutes in an overbroad manner, and they are not afraid of litigate even tenuous positions – based on the consideration that any judicial precedent helps clarify the law.

Be compliant and prepared

Cease and desist letters from consumer groups most often come with tight deadlines, adding to the challenge of implementing any required changes within the game. However, games companies can take steps to prepare:

• Review terms of use periodically and make sure they are compliant with German and EU law (such as the consumer rights directive)
• Educate live teams about the importance of avoiding direct purchase exhortations to children, and develop alternative wording and designs
• Review privacy practices and privacy policies, also in light of upcoming changes under GDPR
• It is never too early to think about mandatory information and formal requirements of purchase flow – advance planning can help avoid having to modify game code under time pressure