AUSSIES - Sony has breached the Australian Consumer Law

I have been speaking with the ACCC, Consumer Affairs Victoria, and VCAT. Their advice to me has been the following:

In regards to No Man's Sky - Sony has breached s33 and s56 of the Australian Consumer Law (Misleading conduct as to the nature of goods, and Guarantee relating to the supply of goods by description respectively).

Additionally, their refund policy is unfair and potentially illegal in the sense that you can't tell if the product matches the description, or if it's faulty, or if any other consumer guarantees have been breached until you have downloaded the product, which then excludes Sony from providing you with any refund, which you are legally entitled to if a consumer guarantee was breached (as has been in this case with No Man's Sky).

The extent of transparency in Sony's refund policy is unclear in determining whether it is fair to limit liability via acquiescence of purchase.

Now before you all jump to conclusions, IT IS NOT ABOUT THE MONEY. I'm an adult and work full-time. I am at a point in my life financially, where 'wasting' $60-$100 on a shitty/disappointing game isn't as big a deal to me anymore, compared to when I was a uni student. I have purchased numerous shitty/disappointing games previously, and have just chalked it up to different strokes for different folks. That doesn't bother me. What DOES bother me, is when big companies think they can shit all over consumers and their rights just because they're big, and noone will do anything.

I have mentioned all of the above to Sony. Their response has been the same - the game description states 'single player' on the game description page on the store. Your fault. That's fine. I acknowledge that. However, in my claim, I went to the trouble of print-screening the game-store page and where it also denotes 'NETWORK PLAY'. Under the reasonable person basis, in addition to the way the game was marketed, a reasonable person would assume this to mean a single player game with online connectivity aspects at the very least. Someone who followed this game would reasonably assume it to mean single player game, but with the ability to cross paths with other players (even though it was said to be a tiny chance). Either way, the fact it says network PLAY (not even network features) is misleading. Of course, Sony have chosen to ignore this and my other remaining points as to why they have breached ACL and consumer guarantees, with no acknowledgement or counter-arguments provided in their response.

This results in Sony actively denying my legal right to a refund as per Australian law.

I encourage other Australian consumers to make note of these breaches and read through the actual legislation below. Large corporations can't keep abusing consumer rights with no fear of reprisal. These laws are there for a reason - to protect us aussie consumers, and they obviously don't give a crap about that At the end of the day, what I would consider a win is if others are at least able to get refunds who are in the same position using the above information.

33 Misleading conduct as to the nature etc. of goods

A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.

Note: A pecuniary penalty may be imposed for a contravention of this section.

56 Guarantee relating to the supply of goods by description

(1) If:

(a) a person supplies, in trade or commerce, goods by description to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods correspond with the description.

(2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.

(3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.

Since 1 January 2011, the following consumer guarantees on products and services apply.

Products must be of acceptable quality, that is:

• safe, lasting, with no faults
• look acceptable
• do all the things someone would normally expect them to do.

Acceptable quality takes into account what would normally be expected for the type of product and cost.

Products must also:

• match descriptions made by the salesperson, on packaging and labels, and in promotions or advertising
• match any demonstration model or sample you asked for
• be fit for the purpose the business told you it would be fit for and for any purpose that you made known to the business before purchasing
• come with full title and ownership
• not carry any hidden debts or extra charges
• come with undisturbed possession, so no one has a right to take the goods away or prevent you from using them
• meet any extra promises made about performance, condition and quality, such as life time guarantees and money back offers
• have spare parts and repair facilities available for a reasonable time after purchase unless you were told otherwise.ad up to the game).

There is also Australian precedent of the ACCC taking legal action against VALVE for claiming customers weren't entitled to a refund, when in fact they were (exactly the same as Sony's refund policy). However, they only started investigating after 4 consumers filed complaints with the ACCC. If any other aussies out there agree with my points, please take the time to file a complaint with the ACCC.

https://www.accc.gov.au/media-release/federal-court-finds-valve-made-misleading-representations-about-consumer-guarantees

Sounds like a stretch.

Good luck on getting your refund though.

They should have a better refund policy full stop.

Proving false advertising can be difficult, but noone can really disagree with them just needing better policies.

Thanks mate! As i said, not really concerned about the money (which as far as i'm aware just gets refunded to your PS Wallet, so the money stays in their ecosystem). I'm more concerned about them treating their customers like this and their dodgy refund policy, and getting away with it.

Couldn't agree more, especially regarding the refund policy - it doesn't make any sense. It's a catch-22 situation, like the 'chicken or the egg' conundrum, but working to their favour. It's akin to have insurance policies which are impossible to claim on.

There's also proof that not all video games/music/media has to be subjected to these types of unfair refund policies. Prime example would be EB Games and their 7-day return policy (not sure if they still do this though).

As consumers, we deserve better, and we CAN get better!

Mods, could you please move this to the No Man's Sky board.

At least we can contain the dramatics to that section of GB.

I actually agree, I'm moving this to No Man's Sky.

I never read their refund policy, and it does sound like they're not adequate for Australian consumer laws regardless of No Man's Sky. I don't know if you'll get your refund, but good luck!

If you can do this with No Man's Sky you could do it with pretty much every game released.

I mean the Steam store page still has the E3 demo with the rhino running through the trees and knocking them over. If I were Hello Games I would have quitely removed that by now. Not quite sure if this is worth the energy but godspeed anon whoops forgot where I was posting.

As an aside, holy shit has the backlash against NMS increased since I've last looked at it. 'Mostly Negative' on Steam. Even Arkham Knight is doing better, and that game was crucified on PC.

Good luck indeed!

I opted out of PSN the moment they wanted money for it so I'm not the most informed in this case so what I say might be completely untrue - but I don't see why Sony can't do what Steam and Origin does when it comes to refund policies. Maybe now that Sony has raised the price for PS+ they'll make a proper customer protection / refund policy? Or at least after this NMS debacle they'll get inspired to throw their valued subscribers a bone.

Looking through the Steam forum for this game (god help me), it looks like there was some information going around about Valve still giving out refunds for NMS even if you'd played it more than 2 hours or owned it for more than 48 hours. Now there's a little notice on the store page about the "regular policies applying" to NMS, and apparently a bunch of people flipped their shit and converted their reviews to "negative", or something equally stupid.

As an armchair lawyer, I'm sure Sony's official legal response to any of these refunds would be: ¯\_(ツ)_/¯

I agree the Network Play term is too ambiguous. They should at least have a different term for asynchronous non-multiplayer games.

If you want to take Sony to task for misleading advertising, I don't think multiplayer is the angle you want to use. It's always been ambiguous whether MP was actually in the game, so I reckon they'll brush off any of your complaints quite summarily. Personally, I would look at that E3 2014 video which is incredibly misleading.

Animals interacting with the environment and scaring other animals? Not in the game.

Flying in a squad with AI pilots for space combat? Not in the game.

Enemy AI pilots that will fly into the atmosphere to continue combat on a planet surface? Not in the game.

Being able to fly low to the planet surface, underneath obstacles? Definitely not in the damn game (even the PC LowFlight mod that adds this still feels crappy).

All of that, like the GBEast guys said, is a lot more damning than any interview of Sean Murray trying to dodge questions about whether multiplayer exists...

@dudeglove: Varies a lot dependent on retailer but from around $80-100. Digital version on PSN is $80.

Yea pretty much this. The trailer is still on the Steam page used for advertising for the current product. If they replaced it with the launch trailer it would've been 'fine' I guess, but now it does try to sell you on features that are not in the game or at least not like in the trailer (animal interaction is there with carnivors attacking other animals, but not in the way like the trailer).

The network play is in the game because you can rename stuff, upload it so other players can see it. Pretty minimal, but it's there.

a game you were excited for didnt turn out well. this all just feels like an overreaction after too much hype.

but hey, the big guys use the laws to their advantage all the time so I wish you luck

Not going to get into my opinion on this. Just wanted to say I hope Hello Games comes out of this okay, especially if these claims become a bigger deal. Even with all the empty promises I feel like they only ever had pure intentions. They had this crazy ambitious idea and dedicated themselves to making it the best it could be, but inadvertently got sucked into the money/hype machine.

This is the first video for No Man's Sky on it's Steam page. It's not a cinematic trailer (at least, it is not presented as one). This is footage being sold to the consumer as gameplay. I'm not going to knock game devs for being ambitious with early demos, but there is a point where people are going to give you money for your product, and that's when you need to start being honest with what said product is.

Someone that just clicks on the NMS Steam page that wasn't caught up in the hype would have no idea that is an E3 trailer from 2014.

I'm curious, what is super rmisleading about that trailer?

@adequatelyprepared: I dunno, I mean by that argument, I could call MGS5 misleading because it promised to close the loop and have a story.

Heck, couldn't the same be said for Watch Dogs for the whole "downgrade" fiasco?

@madman356647: Well, whatever your feelings for MGSV or Watch Dogs they weren't marketed as something they're not after release via trailers/pictures on store pages.

@shiro2809: I'd argue the entire MGS series sets a precedent of what you -should- be getting versus the final product.

Also, we can also argue Watch Dogs based on pc graphical quality since people found "E3 specific" settings.

So, I'd disagree. Plus on that same note if we're going to argue as something marketed that it's not, couldn't we in theory say that about most other games (such as the cinematic trailers for WoW versus the actual product)?

@yothatlimp: I'm kind of with you. That's certainly no more misleading than any other super glossy early trailer for a game. Heck, they even show the rocks and shit stuttering in like they do.

And people wonder why games are kept so under wraps before announcement.

I'm pretty sure that to be entitled to a refund in Australia it has to be a 'major flaw'. You'd be hard pressed to prove the advertised 'network play' vs. the state of the game is a major flaw. Particularly as there are:

A) network features (naming things) and they apparently work.

B) no promises about 'multiplayer' there.

@madman356647: MGSV was never marketed to be the same as the original games, it was always marketed as more open world and didn't talk about the story that much. The 'E3 graphics' for Watch Dogs were also unfinished, iirc, meaning they were scrapped earlier.

Watch Dogs wasn't marketed on launch w/ the 'E3 graphics', MGSV was never marketed as more than what it was. MGSV had a story, people just weren't happy with it because the fanbase built it up as if it was going to be more than it actually was, and it did close the 'loop', it showed what was going on between MGS3/PW and MG1.

Cinematic trailers aren't gameplay trailers and don't try to pass as gameplay trailers.

The issue w/ NMS is that they still have the E3 footage showing on Steam as if that was the final product (pictures too, I believe), and it's been there for weeks with no sign of any change (or a word from the devs). While Watch Dogs was 'downgraded' from what they initially showed, and MGSV was always ambiguous but never promised more then what was actually there (that was a case of the fanbase building hype, expecting it to be super cinematic like the previous games), No Man's Sky most definitely did and it's still showing itself off as more than what it actually is.

The thing is, this issue isn't something the consumer is able to control. Its all about the cost over time. Now good for you for knowing your laws and how they are sapose to work. You must have spent some time finding the exact article in the law and posting it here. You probably spent a lot of time finding that information. And you probably spent almost enough time doing the work when you could have actually gone out and worked and got your money back. See my point?

What you need to do if your so insisting for a change is talk to a lawyer and probably get names, and I mean a lot of names to justify the lawsuit. What your looking at for yourself is a small claims court, which will probably cost more in court room costs than the game itself.

It sucks, but its the reality of it.

Yeah, I feel like people for get this was a super polished demo of what the target was supposed to look like, this was still 2 years from release.

Totally. The way people behave in situations like this make any reasonable person want to do anything they can to distance themselves from it too. It's troublesome because real issues might exist here (e.g.: still using old footage on the steam page), but I read three Steam reviews and I can't help but feel good that these angry children feel like they got ripped off. They're so fucking disrespectful and whiny, I just can't bring myself to give a shit.

Yeah, this is definitely a better angle than the Network Play thing.

Still not sure if/how development changes of a video game would affect its standing under Australian Consumer Laws.

Now that the "What if MGS2 happened today?" seed has been planted in my brain I can't stop thinking about how all this NMS backlash would have applied to that game. Imagine: "Class Action Lawsuit Against Konami's Raiden Switcheroo" ; "Ocarina of Time Fans: Where Are the Graphics From 1st Trailer!?"

I've said my piece on this drama I think and so will only go so far here as to say that I, personally, am a big proponent of consumer education. It should be important to us that we understand what we're buying, whether it is a house, car, sandwich or game. There are good tools for us today to review products before we purchase them ourselves, and it is only in our benefit to do so. In our world, there will always be products which are misleading in promotion (either on purpose or by accident) and so we need to insulate ourselves by either having a enough cash money to not give a shit, or, know what we are buying. This is not to say at all that other parties are not responsible in any way in these transactions, but only to say that we have responsibilities ourselves.

I've personally witnessed one animal kill another (though it was categorized as vegetarian which made the violence a little odd, it did look like an outcast from DOOM 2016). There is also a really cool video out there of a firefight taking place in the planet's atmosphere (it was posted on Reddit about a week after the game came out). I get that the promotional materials misled people, and I've cooled off on the game about as immediately as most of the staff did, but I do still see the promise in the game and I think it's equally misleading to claim things aren't in the game just because they haven't happened to you or anyone you know personally.

Can you even cite an E3 trailer as misleading marketing? Don't they always have disclaimers about being a product in development that is subject to change? Otherwise every game would be getting sued or class-actioned.

I purchased the 70$ boxed version of mighty number 9. that game certainly wasn't what it was promised. I haven't even beaten a fake robot master in the game i didnt like it so much. look at those first screens.

but when I realized this I just made a really sad face and sighed and moved on.

games get overhyped and they over and underperform based on your expectations. as does all media. I dont know why this was so different. maybe because the reddit hype machine was behind it?

Would these AU laws have worked on all the NES games with box art and descriptions that had NOTHING to do with the game?

temper tatrum may be too strong a word for anyone here (Though I certainly seen it elsewhere) but I gotta say this reaction by some of my fellow duders bums me out

I don't like how much they lied, but there's little anyone can do. The only way to prevent this in the future is to resist frenzied hype and be skeptical of marketing, especially from AAA publishers, because you will never be able to hold these big corporations accountable.

@bradbrains: I don't know if this is by law or not, but in terms of physical games, all stores I know of in Australia would usually give refunds without questions asked within few days of purchase. Maybe not back in the NES days though, since these consumer rights laws were passed in 2011.

It seems a lot of you are basing your opinion on where you're from.

Each country has different laws, and Australia has quite extensive consumer laws to protect consumers, which most likely will differ significantly from your home country's.

Just because this may seem absurd or ridiculous based on where you're from, doesn't mean it is in Australia.

In terms of actually proving something is misleading, the most important part of doing so is that the consumer felt deceived or misled. It does not matter if it was the company's intent to deceive or not, only if the end consumer felt deceived. Given it is not just me or a handful of people who feel this way, I feel that adds some weight to the argument as well.

Completely agree with you. However, in saying that, Sony's refund policy as it stands is essentially illegal. Reading reviews and being an informed consumer is possible some time after the product has been released. Sony are accepting pre-orders for games sold on PSN. People making these pre-orders are doing so under the assumption that the product upon release does not breach any consumer laws or consumer guarantees. That is the underlying assumption. However, there is no way to ascertain this until the product has been downloaded, where they are no longer entitled to a refund under their policy. So if the product DOES breach consumer laws, they are entitled to a refund, but Sony will not pay that refund under their current policy.

I know some people may say 'that's the consumer's fault, they should know better etc.' This may well be the case, but there are consumer laws to try and protect the ignorant consumers from big corporations pulling a 'fast one' on them (from the backlash I received posting a similar thread on reddit, i'm assuming this is not the case in America).

I also received a courtesy call from Sony Support yesterday which was very much appreciated. I have also requested a copy of this conversation, where the support staff agreed with my thoughts, and said that although he agrees, his hands are tied. They sent my refund request up to head office twice (which they apparently rarely do unless they think there is some merit to doing so). Both times head office have simply referred me to their refund policy. This even after I notified them of s33 and s56 as well as the fact that their refund policy doesn't seem to be legal in Australia upon advice from ACCC and Consumer Affairs. He also stated that as it is Sony Computer Entertainment Europe who is 'head office', and that their refund policy applies to all regions covered by SCEE, and therefore the assumption is that they have simply applied a blanket refund policy for all countries. Obviously, different countries have different laws, and different consumer protection. As a result, in having a blanket refund policy instead of a specific refund policy tailored to the specific country's laws, they run the risk of breaking laws in some countries. This seems to be the situation here. This would essentially amount to negligence in having a blanket policy without taking into account the laws of each country. Even moreso in denying consumers their rights when they have been notified of such. The support rep then encouraged me to follow through with consumer affairs, as hopefully if a government legal body contacts head office informing them of the above, they may be motivated to take it more seriously/actually take action.

I found this abhorrent (in terms of Head office), and do plan to proceed further.

You're entitled to your opinion, but I have been advised by the ACCC (Australian Competition and Consumer Commission) and Consumer Affairs Victoria that Sony has breached s33 and s56 of the Australian Consumer Law, as well as consumer guarantees, as well as their refund policy being sketchy. ACCC is the legal government body responsible for regulating consumer law. I did not come to these conclusions myself, I did some preliminary research, then contacted the above government bodies for their formal advice/expertise.

There is a logo for 'network features'. Why was this not used instead of 'network play' then? (Not trying to be confrontational, just saying)

I agree with you, in terms of my personal situation, there is no personal direct benefit in me taking things further. But as I said, this was never about the money. This is about Sony blatantly not doing the right thing, being informed of such, and not caring.

And maybe I did all this while I was at work? ;) - But point is, the money doesn't bother me. 'Losing' $80 or however much it was doesn't impact my finances.

And as I said above, I did preliminary research. The ACCC and Consumer Affairs are the ones that referred me to the specific sections of the consumer law and of the consumer guarantees and the sketchy/unfair advantage for sony at the detriment of consumers refund policy.

I know that realistically, the biggest chance of initiating change is a class action suit against Sony, which is a massive undertaking and quite drastic.

For now, my aim is to just inform other Australian consumers of the information I have obtained in my conversations with government bodies, and create some awareness.

The more people that are made aware, the bigger the noise (in theory). If this whole thing escalates to a point where class action becomes a genuinely valid and appropriate avenue, we'll cross that bridge when we get to it.

For now, I am planning to contact consumer affairs victoria again to inform them of Sony's official final response to the complaint letter I filed (At ACCC/Consumer Affair's advice) to take things further, and will be in contact with VCAT (Victorian Civil and Administrative Tribunal) also.

That is 100% in the game as it happened to me, I thought I could escape the pirates by entering the atmosphere but they continued their assault.

Yup, that's very true. Prime example would be EBGames, who pretty much bragged about their 7-day no questions asked refund policy.

THE LAW ! I AM THE LAW ! (Sony sends over its army of lawyers )

Sure, because it's unheard of for big corporations to be negligent and break the law or do the wrong thing. I mean we've NEVER seen product recalls of defective products or misleading consumers. The recent massive Volkswagen emissions scandal must have just been a fever dream.

What exactly is the point of your post? To be sarcastic and poke fun at me for passing on the advice given to me directly by the government bodies responsible for regulating the Australian Consumer Law?

Im interested - Other than arrogance, what gives you such an in-depth understanding of the Australian Law to the extent that you think you know better than the government bodies above?

I read someone post in the Deus Ex forums that 'not every game engine works the same way'. That same logic applies to the legal system. Not every country's legal system works the same way. It's pretty ignorant to poke fun at someone else just because their legal system differs from yours, which is pretty ironic since i'm assuming that's what the intent of your original post was (to say i'm ignorantly thinking 'i am the law')?

Prime example of the securities arm of Australia's biggest bank (Commonwealth Bank of Australia) being fined today for not doing the right thing (ASIC is the equivalent of ACCC but for the finance industry). Not saying the two situations are in any way the same, just trying to make a point that massive corporations stuff up all the time - http://www.abc.net.au/news/2016-09-02/commsec-to-pay-penalty-1.1-million-in-refunds/7809276

Never happens for me. I regularly fly into the atmosphere and find that no-one follows me, but will immediately get attacked once I fly back into space. It's crap.

Glad to see that this is getting escalated in a relatively civil way, and not by sending death threats and writing mad posts with customer service screencaps, as the internet is wont to do. Godspeed.

By the way, how has this thread gone for so long without ever mentioning that there is already precedence for Valve losing against the ACCC for their Steam refund policy (link). I realise this might not be something that most of the world is familiar with, though I think it might have been mentioned on a Bombcast in passing. This isn't too far-fetched in comparison.