The claimant in our case is an online gamer, and the creator and owner of a disputed online game account. The claimant spent a significant amount of money purchasing in-game virtual assets and becoming a top player according to server-provided rankings. However, the game operator one day issued a notice claiming that the claimant had used remote software and so violated the users’ agreement signed at the time of account registration, as well as the community rules made by the game operator, and banned the account permanently. The claimant resorted to the arbitration clause in the users’ agreement and referred the dispute to the relevant arbitration institution with a request to regain access to the account.
CENTRE OF DISPUTE
The claimant argued that content to the users’ agreement were largely standard clauses that served to narrow gamers’ rights. For example, the indemnity clause restricted the gamer to request compensation calculated by the in-game value of the virtual assets, rather than their market value. The claimant requested to declare these standard clauses null and void.
The game operator emphasised the community rules, which prohibit all players from using cheating software, yet the claimant asserted that his remote software was not a cheating software, and even if it were, the prohibition of cheating software, as well as the penalty, was not part of the users’ agreement, but was instead issued by the operator in the community rules announced to all players. As to the nature of the community rules, the parties interpreted them differently.
OPINIONS OF TRIBUNAL
Had the game operator adequately notified the players?
The arbitral tribunal found that the users’ agreement was concluded via electronic forms by and between the game operator and the player (i.e. the claimant), begging the question of whether the provider of standard clauses under the users’ agreement had properly drawn the users’ attention to these clauses. In this case, the game operator did adopt bold font for, or underline, the indemnity clause.
Next to be determined was whether the clause itself was null and void under the Civil Code, specifically article 497. The tribunal found that the relevant data pointing to the virtual assets were stored and owned by the game operator, with players granted access based on the users’ agreement. Therefore, the tribunal held that the users’ agreement was critical in forming the basis on which rights and obligations could be determined. Reference was further made to article 127 of the Civil Code, which provides protection of virtual assets.
The term “actual value” contained in the indemnity clause refers to the player’s monetary placement in the account or the nominal value of the game currency. However, for certain hard-to-obtain virtual assets, their values when exchanged in a recognised intermediate, or off-the-counter, may exceed the nominal value represented in the game currency. If the protection extended to such assets was limited to the player’s original payment for acquiring them, it would be but a superficial interpretation of the Civil Code article about protecting virtual assets. Therefore, the tribunal was inclined to determine the compensation by referring to the disputed virtual assets’ market value.
Did the alleged violation of the community rules really take place?
The game operator voluntarily disclosed collected data, which pinpointed the claimant’s use of the remote software. However, the tribunal decided that the claimant was not in an ideal position to authenticate the data, especially after being denied access to the game. Nor was the tribunal in a good place to unilaterally verify the data provided by the operator. For example, the operator submitted that the code “AAA” indicated where the claimant used the cheating software, which by itself was less than convincing.
In accordance with article 2 of the Several Provisions of the Supreme People’s Court on the Evidences in Civil Litigation Cases, the court should explain to the relevant party the burden and consequence of proof, and require the relevant party to discharge its burden of proof in an active, complete, correct and honest way. The tribunal explained to the operator that evidence should be straightforward and understandable by common sense, after which the operator authenticated the process of downloading the game, logging in to the game and collecting the data generated during the game. The authenticated copy was submitted and used as evidence.
Common terminologies in online gaming should be distinguished.
Within this case’s context, the term “add-on” refers to a cheating software provided by a third party that modifies game data, such as attributes to a character or equipment. The term “scripting” refers to modifications that allow abnormal gaming behaviour, such as automated, non-stop account activity. “Remote software” in this case refers to using a separate hardware to remotely log into the account and control the game. The first and second terms are generally considered cheating, but remote software is more widely used, including in circumstances where one controls at-home hardware from the office, thus its “cheating” nature is up for debate.
The tribunal noticed that according to the operator’s announcement issued to all registered players, add-ons and cheating software are explicitly prohibited. It was acknowledged that the game operator’s management and supervision over a single player’s actions was for the collective benefit of all players. The tribunal held that since a hyperlink to the announcement was placed in the users’ agreement, the announcement should be deemed as a part of the agreement and followed by all registered players and the game operator. However, the announcement only banned the use of cheating software, which, as explained, did not necessarily include remote software.
After a thorough explanation of the above-mentioned issues by the tribunal, the parties successfully reached a settlement over their dispute.
Online gaming features highly complex trading conundrums involving the legal protection of rare virtual assets. For online gaming arbitrations, issues often revolve around virtual facts or gaming actions, which cannot always be judged by common convention. Therefore, such cases require the judges/arbitrators to possess a basic understanding of the business and common terminologies in the world of online gaming. It also requires presentation of electronic evidence comprehensible to the layperson so that facts can be ascertained and disputes properly resolved.
Wang Xiaotian is the deputy director of the No. 2 Case Management Department and Li Tingwei is a senior case manager at the SHIAC