Letter from Poland: Consumer Rights and F2P Advertising

March 19, 2015 Leave a comment
We are very grateful for our readers all over Europe for sharing their views and comments on the topics we dicuss in this blog. Sometimes, readers’ comments could be blog posts in their own right. We have decided to feature such comments (with the author’s consent of course) as a hopefully regular new feature, the “Letter from …”. The first installment of the series comes from Warsaw – fellow IT/IP law blogger Jakub Kubalski tackles linguistic issues with Poland’s implementation of the Consumer Rights Directive and discusses a hefty fine for allegedly misleading online game advertisements.

Recent developments in online games marketing in Poland

2014 marked as a year of not-so-little change in terms of legal requirements towards marketing in general and online game marketing in particular.

Implementation of the Consumer Rights Directive

This is naturally mostly associated with the Consumer Rights Directive being implemented throughout the EU. Poland was no exception. The landmark legislative act transposing the directive – pol. ustawa o prawach konsumenta, came into force on Christmas day, 2014.

The Act did not however come as a welcome Christmas gift for entrepreneurs, especially for on-line gaming providers. The Act, in line with the Directive outlined a wealth of precontractual information to be provided prior to distance contract conclusion.

What is more troublesome, as usual with implementations, there were minor, but significant divergences from the language of the Directive.

For instance, the Directive lists the precontractual information by saying:

Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner: […]”,

whereas the Polish Act begins the list with:

No later than in the instance of the consumer expressing his will to be bound by a distance or off-premises contract, the trader is obliged to inform the consumer in a clear and comprehensible manner about: […]”.

This means that in particular eCommerce schemes, the precontractual information needs to provided earlier than in other EU countries.

Moreover, whether done intentionally or not, adding the word “about” may in some cases act to the benefit of the trader and limit his obligation to provide direct information to the consumer.

These and other discrepancies mean that documents such as Terms of Service need to be tailor-cut to the national requirements. And again, depending on the case, the inconsistencies may act both to the benefit or detriment of the service provider.

Warsaw court fines marketing firm for advertising an F2P game as “free”

Moreover, 2014 brought upon us a decision by a regional court in Warsaw imposing a fine (approx. €10K) on a marketing firm responsible for SMS advertisements of a popular tank MMO. This has made marketing F2P games more difficult.

The court ruled that advertising a game as “free” to play when in reality, full use of the game is possible only after some in-game purchases, was contrary to collective consumer interests.

The court had ruled as an appellate body and approved a likewise decision of the President of the Office of Competition and Consumer Protection from 2012.

Naturally, the Polish legal system being a continental one, does not know the concept of court precedence. However, this decision has already had an impact on similar cases in practice. Publishers and other firms contracted to market such services no longer use expressions like “Play for free” without adding a specific disclaimer.

Jakub Jan Kubalski, Associate, Domański Zakrzewski Palinka

Jakub has worked for Domański Zakrzewski Palinka since September 2008.

He specialises in intellectual property rights, regularly examining legal aspects of the internet and other electronic media. Jakub is experienced in advising Polish and foreign telecommunications companies and companies specialising in computer software, in particular developers and publishers of video games. He has experience in the drafting and negotiating of agreements specific to the IT, IP intensive companies, including competition issues. He can be reached at jakub.kubalski@dzp.pl.

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Konstantin Ewald

Konstantin Ewald

Partner at Osborne Clarke
Konstantin Ewald is a Partner and Head of Digital Business at Osborne Clarke, Germany. He advises leaders in the digital media and software industry throughout Europe and the US on all matters of digital media and IT law as well as IP/technology-related transactions.

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