Bungie Says Destiny 2 PC Players Won't Get Banned Unfairly, But Some Dispute That

Destiny 2's PC launch hit a rough spot earlier this week when numerous players took to the web to declare that they had been banned from the game unjustly. Many of those players speculated that the bans were due to third party programs such as Discord and Open Broadcaster Software. In a blog post today, developer Bungie addressed these bans, saying that it had only actually banned 400 players and that nobody would be banned for using those programs.

The popular shooter, which first launched in September for consoles, has always been a magnet for drama, so it was no surprise to see this week's PC launch face its own controversy. What appeared to be thousands of players took to Reddit, the game's official forums and Kotaku's tips line to complain about being banned from the game unfairly. Many of these players noted a common factor: They were running third party programs such as stream overlays and chat services. The theory was, if you used one of these programs, you might get caught in an unjustified ban wave.

But Bungie says the outrage was unfounded. "Bans were applied to players who were using tools that pose a threat to the shared ecosystem of the game," the studio wrote today. "We did not (and will not) issue any bans for the use of overlays or performance tools, including Discord, Xsplit, OBS, RTSS, etc."

Players are disputing Bungie's account, however. "The only overlay I had on was the Nvidia Fps counter," wrote one Twitter user. "While playing, I randomly got dc'd and when I relogged, I was banned." Several Redditors have pleaded the same case. "I was playing on a PC that literally had only Windows 10, Blizzard launcher and Destiny 2 installed on it," wrote one. "I genuinely have absolutely no idea how or why I could have been flagged up."

Community manager Chris "Cozmo" Shannon did note that third party programs could affect the game's performance. "Third-party applications that aren't compatible with Destiny 2 may cause the game to not run but won't result in a ban," he said on the game's forums. He referred players to Bungie's help page, which outlines third party programs with features that are incompatible with the game.

Prior to Bungie's blog post, PC project lead David Shaw also responded to concerns on Twitter, albeit more colorfully.

"We do block programs from pushing their code into our game. Most overlays work like that. We don't ban for that though," Shaw said. "That's internet BS."


    So hard to put my chips down here....
    The Internet lies, but Bungie isn't exactly known for being honest or candid either.

    Also out of the box, their hacking monitoring software may be a bit agressive. been a common theme in some new releases to have heavy automated bans cause someone didnt configure the third party software right.

    I am wondering if they are using Warden... and if any of the users are existing or new Battle.net accounts.

    Permanently banning ~400 people within 24 hours of launching doesn't seem great no matter what they were running. Especially when there's still no details about what will actually get you banned.

      Regardless of what one thinks of the legal fiction of 'licensing' a game rather than owning it, instabans on day one with no strikes or warnings seems pretty harsh when this is effectively the same as taking these people's $79 and giving them nothing in return.

      It seems to me that there should be a pretty strong case under trade practices and/or consumer law here if someone wanted to make an issue of it.

        There's no specific legal precedent for clickwrap licences here, but an article by Thomson Geer lawyers in 2016 notes the Australian courts did rule in Smythe v Thomas that clicking accept on the terms of use for eBay constituted a valid contract, so there is some related case law.

          It's really irrelevant whether it's a contract or ownership issue.

          If we interpret the agreement (TOS) as a contract, however, one party is self-evidently behaving unconscionably in enforcing a 'right' under a take it or leave it contract in an instance where there is a clear imbalance of power between the parties, where the only arbiter of compliance with the contract's terms is one of those parties with no practical recourse by the other other than court action (and no warnings or other stepped consequences), and there is clear financial detriment to the consumer of that decision.

          Seems fairly clear cut to me.

          The only issue really is how to get either a consumer watchdog or a class action organised in a way that makes legal action viable with respect to a $79 loss.

            An offer of service doesn't require the ability to negotiate to be conscionable, it only requires that the buyer be given the option to not accept the terms and thus not engage the service. The details of the agreement are linked on both the Blizzard and Destiny website purchase pages, as well as on the back of the box for console editions.

            Whether the terms are considered a contract is relevant because breach of contract isn't valid grounds for refund under Australian consumer law. Refunds are only an option if the product doesn't meet the terms that were agreed upon (ie. the terms of service).

              You appear to not be up to date with current law regarding take it or leave it contracts and unfair contract terms, both of which have significant legal protections in Australian law for both consumers and small businesses, along the lines that I have described. See https://www.consumer.vic.gov.au/products-and-services/business-practices/contracts/unfair-contract-terms and https://www.accc.gov.au/media-release/a-guide-to-the-unfair-contract-terms-law

              Last edited 26/10/17 2:25 pm

                Okay, if we're going to argue this then let's look at the actual law, not a summary. Australian Consumer Law, section 21 subsection 1 describes what constitutes unconscionable conduct, with my emphasis added:

                (1) A person must not, in trade or commerce, in connection with:
                (a) the supply or possible supply of goods or services to a person (other than a listed public company); or
                (b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company);
                engage in conduct that is, in all the circumstances, unconscionable.

                Section 22 describes the circumstances the court considers in hearing a case for unconscionable conduct:

                (1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer), the court may have regard to:
                (a) the relative strengths of the bargaining positions of the supplier and the customer; and
                (b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
                (c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and
                (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
                (e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and
                (f) the extent to which the supplier’s conduct towards the customer was consistent with the supplier’s conduct in similar transactions between the supplier and other like customers; and
                (g) the requirements of any applicable industry code; and
                (h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and
                (i) the extent to which the supplier unreasonably failed to disclose to the customer:
                (i) any intended conduct of the supplier that might affect the interests of the customer; and
                (ii) any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and
                (j) if there is a contract between the supplier and the customer for the supply of the goods or services:
                (i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and
                (ii) the terms and conditions of the contract; and
                (iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and
                (iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and
                (k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and
                (l) the extent to which the supplier and the customer acted in good faith.

                Looking at the twelve conditions, the following can be reasonably said about this purchase arrangement and arrangements like it:

                (a) The seller has the stronger bargaining position.
                (b) The conditions being required are reasonable for the protection of the legitimate interests of the supplier.
                (c) This is intended to be applied case-by-case, but it's safe to assume the average consumer understands what the terms of the agreement mean.
                (d) No undue pressure or unfair tactics are used by or against either party.
                (e) The customer can obtain equivalent gaming services through other games and providers. Their choice of this specific brand is a choice, not a requirement.
                (f) The supplier's conduct is entirely consistent across all buyers, the same terms apply in all cases.
                (g) No industry code applies.
                (h) No reasonable assumption would be made by a buyer that an industry code would apply, since there are none.
                (i) The supplier has reasonably disclosed conduct that might affect the interests of the customer, and any risks arising from the supplier's intended conduct.
                (j) A contract exists at the time or purchase. The supplier may be unwilling to negotiate the terms, however (iv) the conduct of the customer after entering the contract is relevant.
                (k) The supplier has a contractual right unilaterally vary the terms of the agreement.
                (l) The supplier has acted in good faith; the customer (by engaging in cheating) has not.

                Given this, out of the twelve declared factors involved in determining unconscionable conduct, of which the law requires that it be considered unconscionable in all circumstances, two and a half conditions at best could be considered failed, while the remaining nine and a half are reasonable.

                This strongly suggests that it does not meet the requirement for being unconscionable in all conditions. Simply having a stronger bargaining position and not being willing to negotiate is not sufficient grounds for unconscionable conduct by itself.

                  You appear to be quibbling semantics and I am unclear why you find it so difficult to admit that you are wrong when you've previously admitted to having no legal training whatsoever other than a professional interest.

                  I used the term unconscionable, I didn't intend it to be a summary of the law. It is now clear that this is causing you no ends of confusion. Please substitute 'unfair contract term' instead when you read my comments above, my apologies.

                  The correct sections of the law are sections 23 and 24 and, not 21.

                  @angorafish It's certainly possible I may be wrong, but I don't see how the sections could be interpreted in the way you've interpreted them. Section 24 defines 'unfair', emphasis mine:

                  (1) A term of a consumer contract is unfair if:
                  (a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
                  (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
                  (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

                  As I noted below, suspending cheaters is reasonably necessary to protect the interests of the supplier, which means all three conditions are not met and the term is not unfair.

                  Neither of us have legal training, we're on equal footing when it comes to interpreting the law. I believe your interpretation is wrong and mine is right based on the above. I also don't enjoy pasting giant sections of law, do you have a suggestion for a better way to discuss the specifics and support my argument in a more conversational way?

                  @zombiejesus I don't have any future knowledge of how a court might ultimately determine the outcome of such a case, all I've ever argued is that the case seems pretty easy to argue.

                  The fact is that you are the one making black and white assertions about the likely outcome of such a case, while also arguing from unrelated legal principles like whether TOS are binding contracts and whether the dev's behaviour is legally "unconscionable" (my apologies for using the word). I have simply pointed out that your citations are irrelevant to the discussion.

                  @angorafish I'm sorry if my comments have come across as 'black and white'. I'm just trying to express my personal confidence, based on what the text of the law says, on the likelihood the ACCC would see suspension for cheating as an unfair term, or that breach of terms of service would warrant a refund.

                  You're absolutely right that my citation of section 21 wasn't relevant to what you were trying to say. I'd go back and edit it to collapse it but I don't want to risk the whole comment going into infinite moderation and killing all the conversation hanging off it.

                The ACCC link you provided seems to concur with this, again with emphasis mine:

                Under the law, a term in a standard form consumer contract is considered to be unfair if:
                it causes significant imbalance in the parties' right and obligations arising under the contract, and
                the term is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term, and
                it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

                Since the suspension of a cheater is necessary to protect the legitimate interests of the supplier, at least one condition (where all are required) to be considered unconscionable in their summary isn't met.

                  Typically where courts have got involved in contract disputes they have expected a degree of reasonableness where parties enforce whatever rights they may may have under a contract.

                  No doubt you are correct that the devs might indeed attempt to argue that completely terminating the contract without warning or right of reply is a necessary to protect their interests. It's no doubt the exact same argument that every other company ever has made in including that same one sided 'right' in their own contracts previously.

                  The fact that this argument has not convinced politicians to the extent that they have passed laws to prevent the practice suggests that the companies making this argument may not have as strong a case as they think they do.

                  I note that Amazon was warned last month by the The Australian Small Business and Family Enterprise Ombudsman that exactly this kind of arbitrary, one sided termination clause is illegal under Australian law and would need to be removed from Amazon's contracts with local suppliers.

                  @angorafish It's certainly possible I may be reading the law more strictly than the courts would in an actual case. I don't think it's unfair to say your interpretation may also be more lenient.

                  My understanding of the Amazon story is it relates to business contracts; the ombudsman noted "an obligation to treat small businesses fairly in accordance with Australian law". The accusation was that Amazon had open-ended terms in their contract that let them terminate the agreement at any time, seemingly for any reason.

                  I'm sure the business contract law is probably worded similarly, but it's worth noting that section 23 and 24 of the ACL apply only to consumer contracts, which it defines as 'predominantly for personal, domestic or household use'.

                  @zombiejesus I can only go on what people far smarter and better paid than me have said, for example Choice states that unfair contract terms for consumers normally include such things as:

                  * A term that allows one party to cancel the contract ... for a minor breach by a consumer will probably be considered unfair.

                  It seems pretty clear that immediate termination as a result of unforeseen software conflict or unrelated programs running at the same time is pretty minor. Immediate termination for one or two instances of stream sniping or similar would also seem pretty minor to me, in the scheme of possible offenses.

                  It's pretty standard in a range of areas of law that an aggrieved party is normally expected to take reasonable steps to advise the offender that the behaviour is not acceptable first, unless the behaviour is severe (threats of violence, hate speech), and that this would normally require more than just a run on list of generic don'ts buried towards the end of a 15 page standard form contract.

                  * A term that allows one party to decide whether the contract has been breached...

                  The fact that the devs can unilaterally determine that a breach has occurred without any recourse by the consumer seems to tick this box.

                  Some of the other criteria could be arguable as well.

                  @angorafish I agree that ending the contract (banning, in this case) is unreasonable for unexpected software conflicts, it should be limited to identified cheating programs. I don't believe Bungie would intend for any non-cheating bans to be in effect or remain in effect.

                  Stream sniping would be a harder sell, to my mind that's a more grey area that could well be justified for preserving the integrity of the multiplayer gameplay, which is a pretty essential element to the service.

                  I don't think there's any argument that straight up cheating is more than a minor breach, that it compromises the service they're selling and that it would be reasonable for them to suspend accounts on that basis. I'm assuming you'd agree with that but please correct me if I'm wrong.

                  The list of possibilities in the Choice article is interesting, though I notice they use 'might' a lot. The 'one side deciding on a breach' example seems like a particularly creative interpretation considering that's how basically every company that sells services operates - if you don't pay your internet bill or your Netflix subscription or your electricity bill or basically any other service, they shut it off by their own evaluation of a breach without needing to take the matter to court, and I doubt any court would find a clause that says "if you breach contract by not paying then we terminate your service" as unfair. I think Choice is either wrong or has worded their interpretation of that one too broadly.

                  @zombiejesus They use 'might' a lot because every case is different, and this area of law still hasn't been extensively litigated.

                  As far as I can tell, the primary basis of your objections seem to be that the vibe of the thing just doesn’t make sense to you.

                  Your examples aren't equivalent. Netflix and Internet don't cut you off while you still have credit on your account. If you stop paying they will still let your subscription run out to the full extent of the purchased period.

                  And for what it's worth, in no state of Australia are utilities entitled to simply cut you off arbitrarily without giving you several warnings first, the opportunity to explain any circumstances that may be relevant (such as that the company is wrong) and offer some kind of opportunity to enter some kind of payment plan.

                  In any case, nothing in the legislation requires companies to give consumers products for free. The difference here is that the computer game and associated multiplayer functionality has been paid for in full and the basis of the agreed contract between dev and player is ongoing service until the servers shut down. There is no subscription fee.

                  Giving alleged offenders an opportunity to provide alternative explanations for what might have occurred (eg the company is simply wrong) is a fundamental principle of natural justice and relevant in pretty much every area of legal practice.

                  @zombiejesus To put it another way. Consumer pays $79 for a service. Service provider withdraws service less than 24 hours after payment due to unspecified, alleged breaches, while also keeping the money. Nice scam there. Now which of these two parties has breached their contract?

                  Well, actually we don't know specifically but in this instance we know that the business is going to win because they have both the initial cash from the consumer and also the money to fight a legal defense making it completely unviable for the consumer to challenge the outcome on their own.

                  This is precisely the kind of situation that the legislation is designed to prevent.

                  @angorafish The examples are sound. All of the services I mentioned will cut you for particular breaches of contract. Non-payment is just one example. Excepting electricity because of its special status as an essential utility, they will all cut you off if you interfere with their operation and all have conditions in their service terms that describe the circumstances by which they will cut service. Netflix and Foxtel will both immediately cut your service if you rebroadcast their content, for example, and there was a story on here or Gizmodo just last year about that exact thing happening.

                  Unilateral termination for breach of contract is normal and accepted practice across almost all non-essential services both domestically and internationally. See for example this page from business.gov.au that describes the following:

                  But when the breach of contract is a serious breach or a breach of an essential term, the other party will have a right to choose to terminate the contract or keep the contract going.

                  This is supported by this article which indicates there are several circumstances by which breach of contract may lead to unilateral termination.

                  The case Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd established that a breach of a condition, regardless of gravity or consequence, entitles the aggrieved party to terminate the contract. A condition here is defined as a term that is considered essential by the promisee such that they would not have entered the contract without its assurance.

                  The evidence available suggests that Choice's statement on the right to unilaterally terminate a contract is not consistent with either law nor precedence.

                  @zombiejesus Tramways Advertising found nothing of the sort, and your continued internet lawyering and legal copypasta simply further demonstrates how little you understand about the law and how far over backwards you are willing to bend in order to find 'evidence', no matter how tenuous, and no matter how unsupported by government authorities and consumer law specialists, that supports your own up front personal impressions.

                  I suspect that you're not convinced about the science of climate change either, eh? After all, a few minutes googling has got to be more authoritative than 97% of climate scientists.

                  For what it's worth although I'll admit to never completing it I did get a couple of years into a law degree, and part of my job now involves contract administration for around a million dollars worth of contracts annually, but sure, you win. I am, wrong. Congratulations, you've weighed me down with the weight of superior logic and intellect.

                  @angorafish Not being able to go back and edit for risk of moderation is frustrating, sorry to tag you twice for this.

                  Electricity was a bad example, and the opening paragraph of my message above was intended to agree with you on that, but note that it's also an exception because of its nature. In rewriting some of my reply it ended up sounding like I was evading acknowledging your point. You are of course right that electricity has additional restrictions on when it can cut you off including the requirement for two notifications beforehand. Those conditions though are unique to services that may be life-essential and don't apply to services in general.


                  Tramways Advertising found nothing of the sort

                  Yes, it certainly did. Here's a link to the state report and the relevant quotes are as follows:

                  If it is a condition that is broken, i.e., an essential promise, the innocent party, when he becomes aware of the breach, has ordinarily the right at his option. either to treat himself as discharged from the contract and to recover damages for loss of the contract, or else to
                  keep the contract on foot and recover damages for the particular breach.

                  The question whether a term in a contract is a condition or a warranty, i.e., an essential or a non-essential promise, depends upon the intention of the parties as appearing in or from the contract. The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor.

                  I'm sorry that you're having a hard time supporting your argument, but I've provided you in good faith with what I consider to be compelling, generally officially stated evidence from government websites, legal experts and established case law to support my position. I haven't resorted to personally attacking you, your character or your knowledge and I don't see why you feel the need to do so in response.

                  Not that it's relevant to this conversation, but anthropogenic climate change is proven, as far as I'm concerned. The evidence to support it is conclusive, much like the evidence I've been using to support my claims above is conclusive.

                  If you similarly believe in examining the evidence, why not explain why you think the links I've provided are either unreliable or unrepresentative of the law? After all, I did you the courtesy of supporting my argument for why the ACCC source didn't say what you believed it said, and I provided evidence from a government website, the websites of legal experts, and established precedent on the official record that demonstrate why the Choice statement appears to be inconsistent with both written law and practice to date.

                  @angorafish Since you mentioned you work with contracts, it seems like it would be useful for you to see additional legal opinions. To that end, here are a few more on the same topic:

                  "The High Court confirmed that the common law right of a party to terminate a contract will arise where the other party has repudiated the contract, breached an essential term of the contract, or committed a serious breach of an intermediate term." - Luke Buchanan (Clayton Utz)

                  "In the case of the breach of an essential term the innocent party may discharge the contract upon the occurrence of the appropriate breach." - R. E. McGarvie, Melbourne University Law Review

                  "Simple breaches of contract (for example, not submitting a payment claim on time or not providing the required number of copies of documents) will not create a common law right to terminate, but a breach of an essential term of the contract will." - Minter Ellison

                  "An innocent party’s right to terminate an agreement will arise where there is a contractual provision which confers that right, or where there is a breach or repudiation triggering the right under common law." - Bill Burrough (Dibbs Barker)

                  "Step 2: Determine the nature of the term (i.e. is the term essential). If essential, any breach (no matter how minor) will permit the innocent party to terminate." - Simon Chapple (13 St James)

                  "If a party breaches an essential term of a contract, the other party can
                  usually terminate the contract and claim damages." - AGS Commercial Notes #40

                  Hopefully these establish that this is not a tenuous claim, and that it is supported by legal experts. I can provide more if need be.

      I think you replied to me but it got infinimoderated. Any chance you can repost?

        Just to add, I cannot reply to any of the posts. One sided termination as stated by fish guy is completely legal contrary to his opinion. See the building industry where people buying off plans have had their contracts terminated and deposits lost. In courts they have upheld it because it's part of the contract. See "sunset clauses" for more info.

          The comment depth for a lot of that was at its limit, which unfortunately means we were replying to my second-last deep comment and tagging by name instead. What you describe does sound familiar, I don't know much about the building industry though.

    given the mass hysteria on the official reddit and forum even at the best of times for minor things, it comes as no surprised a lot of this was hot air. Granted Bungie isnt known for their bedside manner, but every time something happens, there are pages and pages all about the same thing, so if you casually drop in (and are stupid) you would think my god this issue widespread, yeah no. People see discontentment and it breeds even more discontentment.

    Sad when the old idea of a gamer community is gone. Now it is all just trolls, hysteria, falsehoods and entitlement, and somewhere in the middle of it you occasionally see a sane comment, seemingly from a real adult. Who likes some stuff, dislikes other stuff but isnt interested in fuelling a dumpster fire or screaming the game is dying.

      Possible because most reddit posts are based on assumption and frustration by people who either a) don't have the sense to seek support from bungie, or b) aren't genuine.

      These sites breed hysteria and stupidity.

    To be honest. I have every single thing the player says they have, geforce experience, discord, teamspeak, slack, Asus GPU tweak.

    I did not get banned in Beta as those people mentioned it was the same ban check that is being used during beta and now.

    Makes me think that there might already be an exploit for keyboard+mouse user to abuse aim assist with controller scheme. Or maybe they are using Xim.

    ha the updated statement from Bungie is that a group of people were banned in error and now have been unbanned.

    boy, it hasn't even been 72 and Bungie has already torpedoed Destiny 2 PC reputation.

    I give props to bungie for trying to preserve the game environment
    fuken Hackers deserved to get stomped
    Should be blaming the hackers for any unfair banning, if there wasnt shit kunts running these tools everywhere we wouldnt have this issue, instead they ruin every game (like PUBG, Overwatch, Paladins, H1Z1, etc) and you want to blame the company trying to fix the issue
    You think the "hackers" would jump on the nets and say the truth, instead we get told, I wasnt doing anything, I was only running this or that, their dogs that need to suck an egg for their crimes, And stuff giving them warnings, juts burn their accounts.
    I would make it that the same credit card, email address, paypal accounts or personal details couldnt be used again for new accounts if they had been previously associated with a banned account

    or even better

    "Korean Battle.net accounts require more personal information, including a Korean social security number. That means if someone is banned, then they will have to find another social security number to enter, which should deter hackers"

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