News Nintendo Loses German Court Appeal Over Switch eShop Pre-Order Cancellations

[lemonfresh]

Nintendo's approach to consumer rights in the eShop has always sparked a bit of debate, in particular its approach to pre-orders and refunds. In Europe the policy of not allowing refunds on eShop pre-orders led to legal action, a case that Nintendo won pending appeal. Now, however, the German court of appeal has reversed that decision following work by the Federation of German Consumer Organisations (VZBV) and The Norwegian Consumer Council.

German Consumer Organisations (VZBV) and The Norwegian Consumer Council.

Nintendo had already changed its policy slightly in September 2020, allowing pre-orders more than 7 days ahead of a game's release to be cancelled directly on the eShop or via Nintendo Account pages. For example when we tested this today, selecting a pre-order for a game out in less than 7 days showed 'pre-order and purchase', making clear that there would be no right to an immediate 'voluntary right to cancel'. When you select a game more than 7 days from release you get a lengthy page explaining your right to cancel up to that point, with payment and pre-loading also held off until a week before release. This customer page explains the process for cancelling, too.

This process, in place for over a year, may need further adjustments following the result of the court case, in which Nintendo has apparently accepted the result. Below is a summary of the case and the latest outcome (translated from German).

Nintendo had already offered video games for download in its e-shop before the official release date. The download usually included a software-comprehensive "pre-load" of the game as well as an icon displayed on the game console. The unlocking of the game took place via update only on the official start date. Such online purchases can usually be revoked within 14 days without giving reasons.

However, Nintendo had excluded the right of withdrawal and relied on a legal exception. However, the prerequisites for the right of revocation were not met, as the download made available after the pre-order did not yet contain any usable game. Until the release date, the game is worthless for the buyers and the contract of Nintendo is not fulfilled in any way.

...The Regional Court of Frankfurt am Main had dismissed the vzbv's action at first instance. With their appeal to the Higher Regional Court of Frankfurt, the consumer advocates have now been successful. At the hearing, after discussing the legal situation, the judges had advised Nintendo to recognise the vzbv's claim for injunctive relief as justified. The company complied with this. In the acknowledgment judgment, the court upheld the vzbv's action in its entirety. As is customary in such judgments, the acknowledgment judgment does not contain any grounds for decision.

Article
https://www.nintendolife.com/news/2...eal-over-switch-eshop-pre-order-cancellations

Original Source
https://www.pressfire.no/artikkel/f...delig-angre-pa-forhandsbestillinger-pa-switch

 

[Ibrahim]

GOOD

 

[Dardan Sandiego]

Thank god, it was a dumb and actually anti-consumer practice. Now let's see the consequences.

 

[Abzeronow]

Good. Hopefully Nintendo gets on refunding very quickly.

 

[meatbag]

Good. Hope other territories follow suit.

 

[Linkstrikesback]

God bless the EU/German insistence on following consumer laws to the letter.

Should be trivial to change the existing refund system to work up to the day of release, so Nintendo has no excuses for not getting this working asap

 

[Dark Cloud]

Good to see the multi billion dollar company lose.

 

[Deleted member 540]

Good. If they can sort out how they can undo the digital downloads, then they can also give refunds on defective products too. And with that a major gap in the business is plugged (even if getting there was a bit ignominious).

Why do they preload a week in advance anyway?

 

[Dash Kappei]

Small step but in the right direction, now go for the kill

 

[Vilifier]

Good. Hope other territories follow suit.

Yup. I hope whatever process Nintendo implements to become compliant is rolled out globally.

 

[Ahmed]

Good. Next is to allow refunds within 14 days after launch without reason (like Steam).

 

[boris_feinbrand]

Yep. Always said, that Nintendo needs to be dragged kicking and screaming in order for anything meaningful to change in this regard. Finally.

 

[SuperFakerBros]

Now to hope that every other region gets this too. No reason why it should be an EU only thing

Good. Next is to allow refunds within 14 days after launch without reason (like Steam).

I'd say there should be limits on that. A lot of games are short and could be beaten within a week or two and that could screw over indie teams

 

[mazi]

good.

 

[Hero of Legend]

Now to hope that every other region gets this too. No reason why it should be an EU only thing


I'd say there should be limits on that. A lot of games are short and could be beaten within a week or two and that could screw over indie teams

Bingo. Those kind of refund systems are deadly for those sorts of games. You're opening the floodgates to abuse and lot of Steam devs confirmed to be victims of such.

Refund before release, fine, you can't play it and then return it since obviously, how could you. But allowing any refund period without HEAVY conditions after release is asking for trouble. Like maybe, no more than a half hour of recorded play time? Like have it be treated as a demo and once you pass a certain point (maybe devs can decide where to place said limit), then your refund allowance is closed.

 

[Deleted member 594]

Good. This one of the few actual anti-consumer moves that Nintendo pulls.

 

[Ahmed]

Now to hope that every other region gets this too. No reason why it should be an EU only thing


I'd say there should be limits on that. A lot of games are short and could be beaten within a week or two and that could screw over indie teams

That's why I said like Steam. You can play it during the first 2 weeks of purchase and less than 2 hours. Of course there are some games that are very short and can be beaten within those 2 hours, for those they could have more strict rules, like less than 30 minutes play time or something.

Either way, people should be able to try out a game. It would be ideal if every game had a demo, but that's not happening.

 

[SuperFakerBros]

That's why I said like Steam. You can play it during the first 2 weeks of purchase and less than 2 hours. Of course there are some games that are very short and can be beaten within those 2 hours, for those they could have more strict rules, like less than 30 minutes play time or something.

Either way, people should be able to try out a game. It would be ideal if every game had a demo, but that's not happening.

Ahh...it's just the "without reason" part that made me raise an eyebrow. That makes sense

 

[Hidden04]

I hope this creates enough pressure for Nintendo to create a refund system.

 

[Pokemaniac]

Why do they preload a week in advance anyway?

Because it lets them stagger the load on their servers and let people play the game immediately when it unlocks.

 

[Shadow]

 

[Clix]

Good. Next is to allow refunds within 14 days after launch without reason (like Steam).

What? I am on board refunds on pre orders and defective games. But any reason? I feel that would be ripe for abuse. Many of us can blow through a game within two weeks.

Edit: saw your response to that. That seems fair and yes should be game by game basis. Two hours is fair for big games. Less for certain games.

Maybe the sweet spot of an hour unless said indie dev can show it is a 1 hour game (a short hike)

 

[Vilifier]

There's no reason Nintendo can't add a cancel/refund feature to the eShop like Valve and Microsoft have in place. I just hope Nintendo doesn't try doing the bare minimum to comply and drag their feet on implementing a consumer-friendly solution.

 

[Hidden04]

Nintendo can be forward thinking in so many ways, but they also make weird decisions, so we could get a monkey's paw with the refund situation.

 

[Lord Azrael]

Hopefully this has implications for their business globally

 

[YoboD]

Excellent news.

 

[Gabev]

I just hope Nintendo doesn't try doing the bare minimum to comply and drag their feet on implementing a consumer-friendly solution.

They most likely will, sadly.

 

[Galgavias]

This is only a good thing, though I'm still a bit befuddled as to why pre-ordering digital games is even a thing. Is pre-loading that big an incentive for people? Ah well, must be me being a dinosaur. Good news for consumers this at least

 

[Raccoon]

This is only a good thing, though I'm still a bit befuddled as to why pre-ordering digital games is even a thing. Is pre-loading that big an incentive for people? Ah well, must be me being a dinosaur. Good news for consumers this at least

Yeah, to me this seems like an invitation to stop offering digital preorders in the affecting territories

 

[Ahmed]

Ahh...it's just the "without reason" part that made me raise an eyebrow. That makes sense

Yeah sorry, I wasn't very clear on that... But the "without reason" part is also something that is common in Europe. With most stuff, you can buy them, try them out at home and return them within a certain amount of days and you do not need to give a reason as to why you want to return it. Most of the time you can just say "this isn't what I wanted/needed" or something like that.

In this case I think it should be similar, granted you haven't spent a lot of time in the game. Steam has the right idea, and I think it could get tweaked by allowing more or less time to be spent in a game before refunding.

What? I am on board refunds on pre orders and defective games. But any reason? I feel that would be ripe for abuse. Many of us can blow through a game within two weeks.

Edit: saw your response to that. That seems fair and yes should be game by game basis. Two hours is fair for big games. Less for certain games.

Maybe the sweet spot of an hour unless said indie dev can show it is a 1 hour game (a short hike)

Yes, it's possible people will abuse this. But on the other hand, the positive effects of this would outweigh it imo (I hope this makes sense lol).

Devs should prove that their game is short like you said. And I also think the opposite should enable consumers to be able to spend more time on certain games before deciding to refund. A big game like Battlefield for example, I would argue that consumers should have more time to spend on that game, maybe 3-4 hours.

Maybe they can even lock out players from a refund if they have a savefile where the end credits are reached. I don't know if that's possible though.

 

[Clix]

Yeah sorry, I wasn't very clear on that... But the "without reason" part is also something that is common in Europe. With most stuff, you can buy them, try them out at home and return them within a certain amount of days and you do not need to give a reason as to why you want to return it. Most of the time you can just say "this isn't what I wanted/needed" or something like that.

In this case I think it should be similar, granted you haven't spent a lot of time in the game. Steam has the right idea, and I think it could get tweaked by allowing more or less time to be spent in a game before refunding.


Yes, it's possible people will abuse this. But on the other hand, the positive effects of this would outweigh it imo (I hope this makes sense lol).

Devs should prove that their game is short like you said. And I also think the opposite should enable consumers to be able to spend more time on certain games before deciding to refund. A big game like Battlefield for example, I would argue that consumers should have more time to spend on that game, maybe 3-4 hours.

Maybe they can even lock out players from a refund if they have a savefile where the end credits are reached. I don't know if that's possible though.

Hmmm, even 4 hours for battlefield is generous because those games are what they are. You’ll know if the style of play and mechanics will click with you.

But then how hard is to prove from the devs? We can expect maybe an honor system from devs to say 30 mins to say, two hours.

Like Dragons Lair is a favorite of mine. I can also beat it in less than 20 minutes.

The positives are great, but I’m also cynical and think people are assholes.

Two hours is a good sweet spot just in case game has an opening 45 min to 1 hour cut scene (Xenosaga lol).

But a dev should have say, like look, this is a one to two hour game. Or this is a game that lasts 30 minutes. On that end, Nintendo should use the honor system. It’s easy to catch if they’re lying. Obviously if Ubisoft says “trust me this game is one hour long lol” Nintendo can be like fuck off.

 

[Tailzo]

I’m proud of my second home country, we have great consumer rights here in Norway

 

[Ahmed]

Hmmm, even 4 hours for battlefield is generous because those games are what they are. You’ll know if the style of play and mechanics will click with you.

But then how hard is to prove from the devs? We can expect maybe an honor system from devs to say 30 mins to say, two hours.

Like Dragons Lair is a favorite of mine. I can also beat it in less than 20 minutes.

The positives are great, but I’m also cynical and think people are assholes.

Two hours is a good sweet spot just in case game has an opening 45 min to 1 hour cut scene (Xenosaga lol).

But a dev should have say, like look, this is a one to two hour game. Or this is a game that lasts 30 minutes. On that end, Nintendo should use the honor system. It’s easy to catch if they’re lying. Obviously if Ubisoft says “trust me this game is one hour long lol” Nintendo can be like fuck off.

For stuff like Battlefield, it's not only a question of whether the game is good or not, but also performance. If a game turns out to be broken or has lots of bugs and glitches 3 hours in, you should be able to automatically get a refund.

I don't know how a dev could prove it, I don't know how the process of releasing a game is like, maybe Nintendo gets to see the game before it releases? Perhaps they should have people playing the game for a few hours to see if they can reach the end credits during that time. Personally, I don't trust an honour system either.

2 hours can be a short amount of time depending on a game, some (long) games really get going only several hours into it. Should a player keep playing hoping for the game to pick up? It's rare, but it could happen.

 

[Linkstrikesback]

This is only a good thing, though I'm still a bit befuddled as to why pre-ordering digital games is even a thing. Is pre-loading that big an incentive for people? Ah well, must be me being a dinosaur. Good news for consumers this at least

Not so much on Nintendo Switch since the filesizes are typically small, but surely you can see why someone would want to be able to start straight away on the release date of a game rather than only then be able to start a huge, potentially 100gb+ download at the same time everyone else is hammering the servers to download it too?

 

[Clix]

For stuff like Battlefield, it's not only a question of whether the game is good or not, but also performance. If a game turns out to be broken or has lots of bugs and glitches 3 hours in, you should be able to automatically get a refund.

I don't know how a dev could prove it, I don't know how the process of releasing a game is like, maybe Nintendo gets to see the game before it releases? Perhaps they should have people playing the game for a few hours to see if they can reach the end credits during that time. Personally, I don't trust an honour system either.

2 hours can be a short amount of time depending on a game, some (long) games really get going only several hours into it. Should a player keep playing hoping for the game to pick up? It's rare, but it could happen.

That’s why it’s tricky. Which is why I also suggest to people not to impulse buy day one and wait for feedback if performance is a concern.

But you bring up bugs. Many games have them. But at they par on course with some bugs well in is normal in most game? Or game breaking like CyberPunk on PS4 which was a hot mess. I think with the latter that is definitely easier to showcase as CyberPunk issues on PS4 just blew up everywhere.

And performance l. Are we talking unplayable into PS4 Cyberpunk catastrophe or Digital Foundry diehards who throw a fit of a game drops frames every once in a while or specific situations?

It’s not an easy thing to navigate. So we either have a set time that applies to everyone, say 2 hours or 2 weeks if shows it hasn’t even been booted up at all. And then just provide certain exceptions if a dev says this game is only 30 minutes to an hit long.

I don’t think they will start issuing refunds for games that have already been started and played any time soon until they figure out what the sweet spot is.

 

[Galgavias]

Not so much on Nintendo Switch since the filesizes are typically small, but surely you can see why someone would want to be able to start straight away on the release date of a game rather than only then be able to start a huge, potentially 100gb+ download at the same time everyone else is hammering the servers to download it too?

Well...no not really, but that's just me. I'm happy to wait for a game to download if I plump for that option. And at least by buying day one I can have access to reviews and opinions on the game if I'm sitting on the fence so I can have done due diligence on my purchase.

I just don't get pre-ordering games in general, save for instances when physical copies may be in short supply. The games aren't going anywhere, why rush? I mean if that's your cup of tea, then fair enough, but I'm happy to take things slower, especially if it means I avoid buyers remorse.

 

[Pineapple Pizza]

This is a great step in the right direction. A refund system for games outside of preorders also needs to be implemented and the industry should be forced to offer a base minimum of consumer protection. This should absolutely cover games not launched (to allow for mistaken purchases), but also needs to allow for time to assess a game to ensure it is of satisfactory quality (just like we can in the UK with physical goods purchased online). The time allowed should be set for the whole industry.

Some companies already voluntarily have much fairer refund policies, such as the aforementioned Steam. Also--and I've only done this once--Audible allows you to return audiobooks you don't like. No questions asked. I couldn't stand the intonation and ludicrous accents of a particular narrator. While there was a audioclip preview--akin to a trailer--honestly, it wasn't until I started listening that I could tell this just wasn't for me.

Of course, such generous refund policies are open to abuse, but I have 166 audiobooks in my library and I've only returned 1. The potential for abuse should not be a justification for the curtailing of our consumer rights.