Defining legal character, liability of online game platforms (Part I)

Online game platforms are channels for gaming products, providing internet sites for game publishers to operate games for access by game players.

As platforms connect game operators and users, defining the boundaries of a platform’s legal responsibility is a pressing concern for platform operators. But before discussing legal responsibilities it is necessary to clarify the legal character of the platform to accurately define its boundaries of responsibilities and obligations.

Boundaries of liability

Article 1194 of the Civil Code clearly states: “Internet users and internet service providers who use the internet to infringe upon the civil rights and interests of others shall be subject to tort liability, except as otherwise provided for by any law.”

Elaborating on this responsibility, article 1195 of the Civil Code states: “When internet users engage in infringing activities using network services, the right holder is entitled to notify the internet service provider to take necessary measures such as deletion, blocking or disconnecting links.

“Upon receiving the notification, the service provider shall promptly forward it to the relevant internet users and take necessary measures based on preliminary evidence of infringement and the type of service; failure to take necessary measures timely results in joint liability with the internet user for the expanded part of the damage.”

Additionally, article 1197 of the Civil Code cautions: “If an internet service provider knows or should have known that an internet user is infringing upon the civil rights and interests of others via its services, and fails to take necessary measures, it shall be liable jointly and severally with the internet user.”

So, according to the above-mentioned legal provisions, during provision of internet services both internet users and internet service providers may become entities engaging in infringement and subsequently bear responsibility.

But in the scenario where internet users may commit infringing acts via internet services, the internet service provider is only jointly and severally liable when it knows or should have known, and fails to take timely necessary measures.

Therefore, to determine whether the game platform operator is directly liable for the infringement, jointly and severally liable for the expanded damage – or free from liability at all – it is necessary to ascertain whether it is a direct internet user or internet service provider, or only a service provider for internet users that has fulfilled relevant obligations when providing the services.

Operational models

As the entity that renders services for game publishing and operation, the platform should be categorised as a service provider for internet users.

However, in practice, some game platforms extend their services beyond platform-related activities to include the operation of gaming products. In such cases, the platform assumes corresponding liability as the operational entity for online games.

Due to variations in services and revenue models of game platforms, the author classifies them as follows.

Distribution and download platforms

These platforms provide services such as game publishing, downloading and dynamic loading. Examples include app stores, quick app centres, web app platforms, and browser plug-in platforms.

In this model, the platform merely facilitates the distribution and download of products, with the actual games provided and revenue collected by game operators. However, many such platforms charge a certain percentage of revenue from game operators. For example, the Apple platform charges game operators 30% of revenue.

Game joint operation platforms

Joint operation refers to the act of platforms and online game operators or publishers jointly participating in the game operation and sharing the revenue.

In a joint operation, all parties work together to provide game products to the public, in which the platform provides a user system and a fee charging system, sharing revenue with the operator.

Game promotion service platforms

These platforms focus on game promotion rather than primary game provision. Through various internet media such as websites, webpages and web apps, they directly or indirectly showcase game content or provide information to promote game products and services.

According to the Notice of the Ministry of Culture on Regulating the Operations of Online Games and Strengthening Interim and Ex Post Regulation: “Online game operators provide services such as user systems, fee-charging systems, app downloads and promotion for online game products of other operators and share revenues with them, which is an act of joint operation and shall bear corresponding liabilities.”

Therefore, if a game platform shares revenue, it will be deemed as involving joint operation and classified as a game operation entity. In such case, the platform may be identified as an internet user that directly provides the product and will be held liable under relevant regulations.

Meanwhile, those who do not share revenues but only provide distribution, download or promotion services will be categorised as internet service providers and bear responsibilities accordingly.

Jeff Yang is the director of Wang Jing & GH Law Firm

Read the related article here:

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Defining legal character, liability of online game platforms (Part II)

According to the law, operators of online game platforms can be held liable for directly engaging or indulging in infringement if they know or should have known of it

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