You're Not Entitled To Refunds For Digital Pre-Orders

If a game doesn't work as advertised, Australian consumer law offers gamers plenty of recourse when it comes to getting a refund. But if you pre-order a game and change your mind - say you need the money back, or you've had a change of heart - the consumer protections are very different.

Over the last couple of months there's been a bit of news about Nintendo, which found itself in some hot water over the terms and conditions on their support page. Nintendo hasn't offered refunds for digital pre-orders since the DSi days, and that policy has carried through to the Switch.

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That's not good enough in the European Union though, which is why the Norwegian Consumer Council got up in arms towards the end of February. Australian law is a different beast to the Europe though, and the Australian Consumer Law (ACL) has a reputation for being especially stringent.

Plenty of companies have fallen afoul of the ACL in the past, with the ACCC's lawsuits against Valve and MSY the most explosive in recent memory. So given the competition regulator is responsible for enforcing consumer law, I asked: if Nintendo's refund policy around pre-orders doesn't fly in Norway, what about here?

In short: while there's plenty of automatic guarantees around software that doesn't work, being able to refund a pre-order isn't one of them.

"Whether or not you are entitled to a refund for a video game pre-purchase would depend on the circumstances of your purchase," a spokesperson for the ACCC said.

"Generally speaking, however, consumers are not entitled to refunds under consumer law if they simply change their mind about a purchase. Many business will still offer customers a refund or store credit for a change of mind though, so it’s worth checking with the business about its refunds policy before committing to a pre-purchase."

The spokesperson emphasised that consumer law still offers plenty of protection around digital goods. If something doesn't work as advertised - say it refuses to load, is corrupted in some other fashion, or God forbid, bricks your console - then you're entitled to a remedy depending on the severity of the failure:

Under the Australian Consumer Law, when you buy products and services they come with automatic guarantees that they will work and do what you asked for. The law applies equally to all goods whether it’s an item you can see and touch in a store, or a digital product you bought online.

If a product you purchased is faulty, your right to choose a fix depends on whether the failure is major or minor. If it’s a major failure, you can choose to get a refund, replacement or repair. If it’s a minor failure, the business can choose which of these options to offer you.

Locally, the 12 month Nintendo Switch software warranty excludes "game software or any other software which is already pre-installed ... or downloaded to the Nintendo console following purchase".

So as far as your consumer rights go, refunding digital pre-orders isn't one of them. Businesses might offer a refund before a game is released - and if you're real nice to the person on the other end of the support line, you might be lucky - but they're not legally required to. Here's a reminder from the ACCC's website about your consumer guarantees, emphasis mine:

Consumer guarantees do not apply if you:

  • got what you asked for but simply changed your mind, found it cheaper somewhere else, decided you did not like the purchase or had no use for it
  • misused a product in any way that caused the problem
  • knew of or were made aware of the faults before you bought the product
  • asked for a service to be done in a certain way against the advice of the business or were unclear about what you wanted

So take note, dear Switch owners. And as we've said many, many times before: don't pre-order games. For more information about your rights under Australian consumer law, brush up via the ACCC's handy guide.

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Comments

    I'd be arguing that the purchase isn't complete until you receive the product. As that hasn't happened because its a preorder, you should still have the consumer right to change your mind.

    This is like saying that as soon as you pick something up off a shelf you're obligated to buy it.

      More that you walked into the shop, paid for the thing on the shelf and at some point you'll go pick it up off the shelf.

        Either one :). Point being that the transaction isn't complete until both parts of the process happen - acquisition AND payment, regardless of order.

        So many examples of where the ownership isn't complete until you both pay for it and receive it that I think it would be a good argument. Issues with hire purchases and off the plan property spring to mind.

          Another way to look at it is that you've entered into a contract to buy the product when it is released and paid a deposit (in this case, a 100% deposit). They'd then argue that they entered into the agreement in good faith and are upholding their side of it.

          Like the article says, the best option is just don't pre-order anything.

            Its one of the reasons I rarely pre-order. Doesnt mean I dont, there are times I want a collectors edition or something like that, but generally, the benefits of preordering dont make sense when things like this happen.

            Good faith is a fair point by the way, but thats got to go both ways. Plus it loses weight with a digital pre-order, which has no physical value. They lose nothing if the transaction is cancelled bar a minimal processing fee. Theres more argument to deny refunds on physical pre-orders for that reason rather than digital.

              Yeah, in the case of physical special editions that are limited in numbers, there may be a case for it. But in that case it would fall back to the retailer's refund policy which may be different to Nintendo's policy for digital pre-orders.

              But in the case of digital purchases like this article is talking about, there's really no point to pre-ordering. They literally have unlimited stock, there's absolutely no risk of missing out.

                That's a good point, exclusivity is just a marketing illusion. I let everyone else road test for at least a couple of weeks before committing to a purchase.

                  At least they've normally got a couple of patches out by then, too.

                  My backlog is so bad I tend to wait for everything to hit half price. No point pre-ordering or buying day 1 if I won't get around to playing it for 6 months anyway.

      Yeah even the bolded part of their own definition states the consumer law doesn't apply if you:
      got what you asked for
      Which is reasonable except that if all you've done is dropped cash on a pre-order, you haven't 'yet' got what you asked for. Seems like the ACCC need to re-evaluate this.

        You've reserved your copy of the game. That is all a pre order is.

          Actually, all you've pre-ordered is your single ownership of a licence to access the software itself. And if it's a Collector's Edition or has physical items, those are obviously yours, too. However the game on the disc, its compiled code etc, you don't actually own. The game is basically in addition to the access rights which you've purchased.

            If you want to get super technical, yes.

              Yeah, I just didn't want people coming in and thinking when they buy a 'game' they have rights to own the software itself, since barely anyone reads EULAs.

    I had a funny one recently.

    Both Dying Light and Dying Light Enhanced Edition were on sale on the Xbox store. They were like, $29 and $30 respectively.

    I accidentally bought Dying Light and realised I had made a mistake immediately. Didn't download it. Ended up getting straight on live chat with Microsoft... and to their credit they did grant the refund. BUT, they only granted it because it was the first refund I had requested this year. Apparently they only allow one per person per year.

    Wasn't super impressed with that. Back to buying pre-owned copies at EB games I suppose, and stick to buying my digital games on PC/Steam.

      It's just a thing they say, "I'll grant you this one time exception", but I've done it multiple times.

      I have a feeling they say stuff like that so you're more careful in the future, i.e. you don't have to come crying to them, i.e. less work for them, more avail time to themselves in the office.

    The only time I have digitally preordered and cancelled was for South Park fractured but whole on Xbox.

    I only pre ordered because I wanted the free copy of stick of truth. After I got my free copy, I contacted ms and they gave me a refund right away. This was still more than 12 months before release.

    I actually never deleted the pre order tile on my console, and 18 months later when it came out, it downloaded and I was able to play it, without paying.

      ...... How does that even work? If you caned the preorder, you should have had everything to do with the game, including preorder bonuses, removed. And then, on top of that, you were still able to play it? Someone fucked up at there end is my guess.

        For the pre order bonus, I guess the console recognises it as a different game.

        And the way the Xbox does game management, when you pre order it comes up right away in your owned games. I guess if you never get rid of that tile, this the console thinks you own the game, when it comes out it just downloads, because you still have it in your game and apps section.

    I'm a Sims tragic, so I recently bought a bunch of packs for the game and bought one by accident that I didn't want - intended to get something else but I had selected wrong. It was a simple process to jump onto EA and chat to someone who was happy to reverse the transaction. I had already downloaded the pack (my Origin set-up does this automatically) but upon logging into the game the next day, the pack had been removed from my account and I had no access to it from the game. I'm guessing timing makes a difference - it would have been a different story if I hadn't clued in to what I had done and played with the pack for a week before asking for a refund. I've also been able to cancel a pre-order in the same way. More often than not, if you ask nicely, they will reverse the transaction.

    "You got grease all over those undownloaded data-packets, we can't possibly let you 'return' them." Bugger off...

    Not mentioned in the article, you ARE entitled to a repair, replace or refund if:

    it is significantly different from the sample or description
    it doesn’t do what the business said it would, or what you asked for and can’t easily be fixed.

    If the game turns out to be less than what the trailers and promo material promises, then you've got a pretty good standing for a refund if they refuse.

      Considering you don't have the game (Because it's a Pre order) you couldn't prove any of the above to support that case.

      But yes if you paid for and took home the game and it didn't work that would be different and "No Man's Land" would fall under "simply don't like it".

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