AGCM (Competition and Market Authority), also known as antitrust, in his last weekly bulletin he dealt with the PlayStation Plus case, a service offered by Sony to play online. The antitrust, with a file of 18 pages contained in the chapter dedicated to "Bad Commercial Practices", has condemned Sony (for the incorrect management of the PS Plus) to a penalty of 2 MLN of euro. But how did we get to this?
It all starts with the reports of some consumers, in particular "Reporting owner of a Sony PlayStation 4 console, who complained that he bought the game Overwatch (Game of the Year Edition) via the console's PlayStation Store application. At the time of the first access attempt, the reporter would have learned that the game in question can only be used after a subscription to the paid service called PlayStation Plus has been concluded. The consumer has complained that this information was not provided in a clear manner at the time of purchase of the game, thereby altering its economic behavior. The consumer also complained that, not wanting to subscribe to the paid subscription, he reported the affair to the PlayStation customer service, asking to withdraw from the purchase, but the request would not have been accepted "
The thema decidendum the dispute is therefore clear: "the lack and / or omission of information regarding the need to subscribe to a paid subscription in order to use the PlayStation console in online multiplayer mode 4 and video games purchased remotely via the Playstation Store ",
From the investigations are out of evidence concerning the lack of information mentioned above both on the PS4 packaging, and on purchases in the PS Store
Regarding the PS4 packs:
"The PlayStation 4 package on the front side does not give any indication of the need to sign up for a paid subscription in order to play multiplayer online. [...]
At the back of the package, on the right side, together with numerous informative claims, a yellow rectangle regarding the PlayStation Plus service is shown. Within the rectangle, with a very small font, there are several indications on the characteristics of the service. Then there is an asterisk on the term PlayStation Plus which refers to a further separate indication that, with an even smaller and difficult to read character, shows the following information "Payment fee", without, however, clearly indicating that in the absence of a subscription it is not possible to play in online multiplayer mode. [...]
The indication of the need to stipulate a paid subscription in order to play multiplayer online is provided to potential buyers only at the bottom of the pack, along with numerous other legal warnings, also in this case with a character of minimum size and difficult to read " .
Regarding the purchase through the PlayStation Store:
"In the PlayStation Store, which is accessed via the 4 PlayStation console, the first video game presentation and description screen also has a button labeled" Add to Cart ", where you can refine your video game purchase. This screen does not contain any indication about the need to get a PlayStation Plus subscription to participate in multiplayer online games. [...]
Information about the need to have a paid subscription to participate in online multiplayer games is provided to possible buyers, in general of the videogames analyzed, only in possible way through various passages, which require the activation of the link "Details" at the bottom of the page, ie a link that is not necessary to use for the purchase of the product. On the second page of description, along with many other indications, the following warning is shown: "Players on the network [...] - To access the online multiplayer sessions of the full game you must be subscribed to PlayStation Plus". However, it has been found that for some of these video games, information about the need for a PlayStation Plus subscription for online multiplayer games is not provided in any way., not even among the indications activated by the "Details" link. [...]
In the event that the user selects the "Add to cart" button from the first contact page, proceeding therefore with the purchase of the video game, no other information is provided about the need to have a paid subscription to use the multiplayer mode online. [...]
The information modalities of the PlayStation Store accessed via the website and the Smartphone App are very similar to those of the console. With reference to video games that can be played either in local mode or in online multiplayer mode, it has been found that information about the necessity of having a paid subscription to participate in multiplayer online games is not provided to potential buyers on the first contact, where the "Add to cart" button is placed, through which it is possible to complete the purchase. This information is, however, made available on the website only in the following pages describing the characteristics of the video game, or in the App by activating the link "Show details", whose consultation is, however, merely possible. [...]
Even in the case of video games that can only be played in online multiplayer mode, for which the subscriptionStationPlus Plus subscription is required, information about the need to have a paid subscription is not provided on the first contact page, but only on the second page of both the website and the application.
These are, in essence, all the evidence presented in support of the prosecution.
Sony obviously answered with the following defensive system:
"First, second the professional (Sony, ed), the information provided about the PlayStation Plus subscription and the online multiplayer mode on the PlayStation 4 package "is clear and immediately identifiable by a reasonably careful consumer who exercises a rational diligence to understand what he is buying". "Nowhere on the pack indicates that online multiplayer modes are free, or included with the purchase of PS4. The sentence on the back of the package clearly informs the consumer that to play online you need to have PS Plus. Based on this, in our opinion a careful consumer who buys a PS4 can not be misled. [...]
Furthermore, according to the professional, "In the vast majority of cases, consumers who purchase a PS4 base their purchase decision on information received from a number of channels and not exclusively from package information". "This is especially true in the case of the average PS4 consumer who is willing to read up on PS4 and other similar products from the competition before making a purchase." Based on these considerations, Sony believes that in most cases consumers would have decided to buy a PS4 before seeing the packaging and, therefore, the packaging does not mislead the consumer at the time of purchase. [...]
Secondly, Sony emphasizes that online multiplayer gaming mode is not an essential element of the PlayStation 4 console, and therefore the prominence currently given to information is appropriate for this purpose. In this regard, Sony has shown that "To play PS4 it is not necessary to have PlayStation Plus. PlayStation Plus is only necessary to play online. Playing online is an additional and optional service which, in our opinion, enriches the PS4 player experience but is not an essential element for playing nor of PS4. Consumers have access to a vast number of games on the PS4 without having to purchase PlayStation Plus or, in reality, without needing an internet connection. " [...]
Thirdly, Sony emphasizes that information on the PlayStation 4 and PlayStation Plus is transmitted to consumers through a variety of channels beyond the product packaging, such as its sales network. [...]
Furthermore, the professional emphasizes the following additional elements. In the first place, paid online multiplayer would be a standard industry practice, "so the average consumer of PS4 would be aware of the fact that online multiplayer mode requires the purchase of a subscription service. The information on the back of the package reinforces the concept to the consumer ". [...]
Finally, Sony emphasizes receiving a low number of complaints on the matter; complaints that, in any case, would not have been registered by their systems. [...]
Sony, however, with the memory received on 23 October 2018 date at the end of the preliminary investigation phase, has declared itself available "to modify the package to highlight more the fact that PS Plus is necessary for online multiplayer mode". [...]
With reference to the fact that in the information pages of some video games produced by third parties for sale on the PlayStation Store there is no information about the fact that PlayStation Plus is necessary to access the multiplayer online game mode, Sony acknowledges that it was a mistake, but it would be attributable to the publisher of the game (lol, ed), which has not forwarded the correct information to the PlayStation Store. [...]
In any case, Sony believes that the information provided through the Playstation Store is sufficient to convey the information that to access the multiplayer online mode is required to subscribe to PlayStation Plus. In the PlayStation Store which is accessed via the console PlayStation 4, the first screen on the video game description page contains the PlayStation Plus icon followed by the indication "2-12 players on the network". According to Sony "this makes it clear to consumers that PlayStation Plus is required to play in online multiplayer mode. We are confident that our consumers are familiar with the icon and know its meaning. However, the product description reiterates that PlayStation Plus is required to play in online multiplayer mode. [...]
As for the need for the consumer to have to activate a link in order to access the description of the video game and get information on the need of the PlayStation Plus for online multiplayer mode, Sony reiterated that "a careful consumer would like to have as much information as possible about the product that is going to buy and click the button well in view in the middle of the page (lol, ed) and that displays the product description".
Sony notes that the space available to enter all the information on the video game is limited, especially on the mobile platform (rotfl, ed). [...]
In the end, between accusation and defense, deciding is the law.
And the law has expressed itself very clearly:
"The information for the dimensions, the graphic features and the location in the product packaging, they are not clearly and immediately perceivable by the consumer and, therefore, they are not suitable for providing potential purchasers with clear and complete information on the limitations on the use of the product for online gaming. [...]
The information provided in the yellow rectangle regarding the PlayStation Plus service, moreover, appear ambiguous in their content, because they do not highlight to the possible buyers that it is compulsory to stipulate the subscription PlayStation Plus in order to use the console in multiplayer online mode. To this we add that this information is recalled in an unclear way by the insertion of an asterisk, on the main claim of the panel ("Join PlayStation Plus to access an instant collection of games, involving multiplayer experiences and much more") , which refers to a further separate indication that, with an even smaller character, difficult to read, shows the indication "Fee payment fee". On this point, the jurisprudence reiterated that "the affixing of an asterisk, which refers to words with excessively small characters compared to the main claim, is insufficient to make the presence of the additional elements tangible to the recipients of the message, not responding this way to the standards of clarity, completeness and perceivability of the relevant elements of the offer [...]
The jurisprudence clarified that "the burden of searching for the relevant information by navigating through the appropriate links can not be passed on to the consumer, also taking into account that the notion of average consumer to whom an unfair commercial practice is directed identifies a type of consumer neither fully informed and circumspect, nor completely uninformed and naive and can not therefore coincide with a typology attributable to a consumer who is particularly familiar and frequenting of websites [...]
The information about the need to get a paid subscription is not provided by Sony in the first contact page even in the case of video games that can only be played in online multiplayer mode, and for which, therefore, the subscription to PlayStation Plus is mandatory. [...]
This lack of information is also aggravated by the fact that, once purchased and downloaded a video game remotely via the Playstation Store, it is no longer possible to exercise the right of withdrawal. It is therefore essential for consumers to be clearly informed about the characteristics of video games before they purchase them, as the lack of access to an online multiplayer platform, if the user does not want to subscribe to the PlayStation Plus subscription, makes video games exclusively online multiplayer actually unusable, jeopardizing consumers' economic choices.
The sentence is therefore clear and leaves no way out to Sony, which is condemned for "unfair commercial practice" and forced, in addition to paying a fine of 2 MLN of euro, to adapt its information on the PS Plus.
We tried to reconstruct the story in detail, without interpreting or inventing anything.
Honestly there is really little to add: Sony's defense was, in some places, even embarrassing. In addition, 2 MLN are really puddles for a multinational like that, which will not be affected in the slightest. What do you think about it?