Valve's Showdown With The ACCC Will Take Place In March

Back in August 2014 the Australian Competition and Consumer Commission (ACCC) announced it was suing Valve for making "false or misleading representations to Australian customers". Since then, the case have been postponed for a number of reasons. Now we finally have an official date: proceedings will be heard between March 7 and March 9.

Back in October last year we reported that the case would most likely be heard in March of this year, but we've only just received confirmation of the specific date. The initial delay was a result of sickness. Valve was planning to send over two witnesses from the US to talk on Valve's behalf, but apparently the witnesses were sick. That was the initial reason for the delay, but now we finally have a date.

The ACCC's issue is with Steam's lack of a refund policy which was, according the ACCC, in breach of Australian consumer law.

The ACCC is demanding the following from Valve:

• Provide an email address that specifically deals with refunds as per Australian Consumer law. • Provide a 1800 number to help consumers address any refund issues. • Provide a PO Box address for consumers to deal with refunds. • Appoint representatives (the ACCC refer to this person as a contact officer) to reply to consumers regarding refunds.

For its part, Valve's defence is mainly centred around the fact it doesn't officially do business in Australia.

Valve Corporation does not admit that it carried on business in Australia although it admits that it has made available to Australian Consumers online access to use video games through Steam Client pursuant to the terms of a Steam Subscriber Agreement

And later...

Valve Corporation denies that it supplied “goods” within the meaning of “consumer goods” in s 2(1) of the Australian Consumer Law. It says that it supplied “online access to video games via a subscription service”. It says that this is a “service” within s 2(1) of the Australian Consumer Law so that the consumer guarantee of acceptable quality in s 54 does not apply.

The elephant in the room here is this: Valve has implemented a refund policy in the wake of the ACCC's legal action. It'll be interesting to see how that affects proceedings, if at all. It's possible that Valve's refund policy is still in breach of consumer law. Ultimately it will be up to the courts to decide.


    "online access to video games via a subscription service"

    I'd be incredibly surprised if the ACCC accepted this argument. Australian consumer law is awesome and you can't get around it by making distinctions like this in fine print, when for all intents and purposes your online portal looks like a standard shop.

      Doesn't matter what the ACCC accepts. It's the Court's
      decision now - and they're more likely to adopt the plain meaning of the term in the T&Cs rather than what we think of as a 'service.' Valve has an incredibly solid legal argument, but if things don't go the way of the ACCC, don't be surprised to see Turnbull legislate further on this to get around the courts and get the outcome they want.

        The ACCC know the legislation very well and fight to the letter of it, It's a rare situation for the ACCC to lose a court case.

          The ACCC loose all the time, they only report on their successes (and even then, it's usually because they've settled out-of-court or gotten an enforceable undertaking). They recently lost against ANZ and they lost again against some health care provider late last year (can't remember the name off the top of my head). It's the multi-million dollar settlements against Coles and the like that get all the attention and keep the ACCC employed.

          Even when they do loose, they are like a petulant child and they try to appeal, with many of their attempts dismissed.

          Just because the ACCC have one interpretation of the Act, doesn't mean it's right. The legislation is designed to protect business as much as the consumer.

        How can they say they don't do business in australia when they have australian specific pricing?

          TL;DR - They just can

          On trading in Australia ...
          They're not saying the 'don't' do business in Australia, they're saying they're not admitting to it. Doing business in Australia is different than 'trading into' Australia. For many years the consumer protection agencies have relied on their own interpretation that "trading into" a jurisdiction obliged a trader to be subject to that jurisdiction's laws, but that's an untested interpretation (much like the ACCC are doing with their interpretation of the ACL).

          On s54 quality obligations ...
          Even if Valve are found to be conducting business in Australia, Valve have a VERY strong argument against requiring all the ACCC's fluff. The opening line of the Steam Subscriber Agreement reads:

          Steam is an online service offered by Valve. You become a subscriber of Steam ("Subscriber") by completing the registration of a Steam user account. This Agreement takes effect as soon as you indicate your acceptance of these terms.

          Compare that with the ACL (again, under s2) where services are defined as:

          (a) any rights ... benefits, privileges ... (ii) [for] the provision of, or the use or enjoyment of facilities for, amusement, entertainment .... [etc.]

          Sounds more like Steam. I'll support this argument with a few other cherry-picked T&Cs ...

          As a Subscriber you may obtain access to certain services, software and content

          Valve hereby grants, and you accept, a non-exclusive license and right, to use the Content and Services

          [Part F] All title, ... to the Content and Services ... are owned by Valve ...

          Access. Not ownership. Ownership requires a quality guarantee. Service requires a common law obligation that it is undertaken with due care and skill. Consumers agree to the T&Cs when they sign up (including one that expressly contracts Valve out of consumer guarantees under US law).

          Of course, this all changes with the stroke of a pen. The Government simply has to change the definition around what constitutes doing business in Australia [which might meet some big corporate resistance {which equal donor dollars} and a High Court challenge] and Valve will be subject to Australia law regardless of the Court outcome - but nonetheless, a much more likely scenario than copping a spot of egg on one's face.

          [edit: dropped some formatting in the T&Cs]

          Last edited 10/02/16 8:45 pm

    If they don't specifically carry out business in Australia, then how are they adding an OZ tax? That sounds like they're specifically selling to Australia...

      They didn't. It was "Regional Pricing". There was no tax involved.

        If there's a separate regional price for Australia, then it would be a logical deduction to say that Valve has carried out business specifically in Australia.

          In addition, Valve specifically mentions that they charge VAT (GST for us) in territories that it exists. If the ACCC can prove that Valve charged GST, then they have a smoking gun to prove that they carried out a business in Australia. It'd be nice if they could get the ATO on board to confirm or deny if Valve has paid any GST or tax to Australia.

            Technically they probably don't - seeing as we're billed in USD, they can't apply GST to it, and seeing as we're not located in an American state, sales tax can't apply either.

            We don't pay GST on digital products with an overseas supplier...

            Last edited 10/02/16 4:22 pm

              Check a newspaper, the laws to do so were introduced in parliment today.

                Yeah, exactly. We currently don't pay GST for digital products with an overseas supplier.

                That newspaper should have told you that much.

      The bigger link to the country is them selling cards in retail stores that you can use to top up your steam wallet.

        But gift cards not subjected to tax?

          I wasn't suggesting that the gift cards should be taxed. Rather that if they've set up a facility where they can collect money from their Australian customers from Australian retail stores in Australian dollars, they are probably "doing business in Australia".

            That's where the loophole begins. They are not actually charging you australian dollar. To get a $50 steam card, you pay roughly $72 - $75 but you don't actually get full $50, usually lesser because what you paid with AUD is to ebgames. The system is setup that ebgames just buy steam credit through steam and load the card with whatever steam converts the AUD -> USD. They probably knock off 3-5% discount as a retailer profiting from the sales.

            Technically, Steam is not doing business in Australia. Just retailers converting cash to digital credit for customers for a fee :P

    I was going to write a long-winded comment, but I just can't be bothered. It comes down to:
    A) The current refund policy is still very much in breach of Australian Consumer Law.
    B) Australians via Region Detection by Valve are being charged more for the same product as our international counterparts.

      Yeah, they can't sell us an item at a higher price than an overseas user and then say their nonsense.
      Plus as others said Steam sell physical cards here that have Steam value on them.

    Our law is pretty awesome in that signing away your rights isn't legally binding. I wonder if Valve would consider flouting any judgement passed down. They have upgraded their terms of service in the past in attempts to counter legal moves made against them.

      You can legally sign away some rights, but not others. I have done that for certain internet services - agree to not have some rights to do with phone services, which I agreed to because I don't use a landline anymore anyway.

        Obviously the point is that certain rights cannot be given away through a signature or clicking to accept T&Cs.

        Sorry, a cornerstone of australian contract law is that any clause of a contract that implies the removal of a legal right is rendered null and void, and any clause that references the voided clause is also null and void.

          Nope, there are some rights that you can give up.

            I think you are misinterpreting what a right actually is. Name one of these rights you gave up.

              It was some boring name and I didn't give much attention to it. It was something to do with the availability of telephone services and uptime or something similar. As I said, not something I cared about.

    Steam Refunds was a hastily put together solution to a problem Valve still doesn't know how to deal with.

    At the time, if you dared to go against the grain all the Gabe fanboys would yell at you.

    Time and again, it's up to the user themselves to know exactly what they are getting into when they HOLY CRAP A SALE G2G.

      Does the refund update make any difference? It wasn't there when they were sued.

        It shouldn't. It still falls short of consumer law. EB make a deal of their "no questions asked" 7 day guarantee, which is really clever marketing, because they're legally obligated to do that.

          I don't think EB are obligated to do that. Where in consumer law does it say you can return something if you don't like it?

            Erm. It's heavily touted aspect on the ACCC website I believe,

              You can return something if it does not function or breaks early or does not live up to advertised promise.

              You can't buy Final Fantasy from Big W, decide you don't like RPG's after all and then return it.

              That is something only EB does, and it over and above what the consumer law specifies.

              Heaps of places say no refunds for change of mind.

                Thanks for educating me. Turns out you're right. Though it would be easy to return most games for not functioning as advertised these days. Especially if can't get the now mandatory day one patches.

                Good analogy. Even just being able to return it is above-and-beyond ACL requirements. EB are well within their rights to only offer an exchange, credit or repair.

                  Point of clarification: I believe the choice of exchange, refund, or repair lies with the consumer, not the merchant.

                  @patchwolf (sorry for tag, won't let me reply anymore). The consumer is entitled to ask for any of those options, the trader is entitled to offer any of those options. It's not a done deal based on whatever the consumer wants - the law considers any of those options acceptable. [s261(a)-(d), ACL].

            Under the new consumer protection laws a product sold has to perform as per advertised/salesman says it will. Or does not have any flaws/features that would have stopped you from buying it, if you had known of them prior to purchace.

            Eg "Is this game any good?"
            "Absolutely - this is the game of the year!"
            "Will it run on my PC?"
            "Sure thing - smooth as silk!"

            In real-life it is a broken buggy piece of crap (eg Aliens: Colonial Marines, Batman: Arkham Knight).

            Sufficient grounds to get a refund.

      I'm a gabe fanboy, I havs the trading badges and massive game library etc, but I rather hope the ACCC forces Valve's hand on some things.

    " does not admit that it carried on business in Australia although it admits that it has made available to Australian Consumers online access to use video games through Steam "

    Stangely enough, they felt compelled to comply with the Australian Classification Board and censor the shit out of Left 4 Dead and other titles that didn't fit within the old narrow boundaries.

    Valve Corporation does not admit that it carried on business in Australia

    Then why are they enforcing Australian censorship laws? They need to stop fucking over customers and fix up their house.

    Once this finally gets sorted one way or the other hopefully we'll finally get AUD on steam. Having to purchase in USD (with an added "Australia tax") is the main reason that I don't buy games on steam anymore. Quite happy to use a 3rd party site to buy a steam key.

    I prefer to be a citizen of the planet when it comes to internet transactions, and a citizen of Australia when I deal with brick and mortar businesses.

    This means to me that:
    I assume that when I purchase online I'm accepting that a vendor may not honour ACL (or anything for that matter).
    I assume that when I purchase from a domestic brick and mortar, that I'll pay more, but ACL will be automatically applied as a collection of rights.

    When you look at it like that- I wonder why this is really necessary. Surely letting the buyer beware would be enough but apparently not :/

      If they want to claim local handling, labour and all that on digital products to justify a price hike, they can get smacked with local laws.

      Seems fair to me.

    What really peeves me is that almost every other country that has access to Steam has prices in their local currency (Even New Zealand had it in the NZD) whilst Australia has to deal in USD, which incurs credit card fees and makes it harder to gauge how much something really costs. If every region was on USD and all regions had the same prices it'd make sense, but we get a local price for the Australian market, just in a different currency.

    Last edited 10/02/16 3:11 pm

      Steam was all set to add AUD onto their store but then this issue with the ACCC turned up. Meant they scrapped bringing in AUD as selling to Australians in their own currency makes their argument of not trading in Australia pretty hard to defend.

      I remember reading that they were bringing in AUD, was happy about it and then months went by with no update and eventually found out about the ACCC.

      So hopefully once this is sorted then we'll finally get AUD on steam. Until then I'm avoiding steam as much as possible and buying keys for it elsewhere.

    If they really want to push the line that they don't do business in Australia, which I don't think they have a hope in hell of succeeding at, I will happily accept a full refund for my entire library and have my 'subscription' voided.

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