Unfair clauses in games' CGU: what you need to know

The CGU define your rights and obligations toward a publisher. Having "accepted" them does not make them all valid: consumer law neutralizes unfair clauses.

What is an unfair clause?

A clause is unfair when it creates a significant imbalance between the rights and obligations of the parties, to the detriment of the consumer (Directive 93/13/EEC; in France, Article L.212-1 of the Consumer Code). Such a clause is deemed not written: it has no effect, even if you clicked "I accept".

French law distinguishes two lists (Articles R.212-1 and R.212-2 of the Consumer Code): a black list of clauses that are irrebuttably unfair, and a grey list of clauses presumed unfair, unless the trader proves otherwise.

Examples in dematerialized games

• Discretionary termination: "we may terminate your license at any time, for any reason". A clear imbalance.
• Unilateral modification: the black list in Article R.212-1 specifically targets the power to unilaterally modify the duration, characteristics, or price of the service; the grey list in Article R.212-2 more broadly targets the modification of other rights and obligations. For digital content or a digital service, the special regime governing updates may additionally allow certain changes under strict conditions: a valid reason, clear information, no extra cost, and an effective remedy.
• Acceptance of a new contract under threat of loss: "we may modify these terms; continued use constitutes acceptance; if you refuse, close your account and lose access to the content". The problem stems from the combination of unilateral modification, acceptance inferred from use, and the absence of a proportionate alternative.
• Imposed waiver of legal rights (such as the 14-day right of withdrawal) without clear information.
• Retention of funds held in the platform's wallet, an issue raised as early as 2019 in the UFC-Que Choisir v. Steam case.

What can you do?

An unfair clause can be set aside by a judge, and reported to the DGCCRF or to a consumer association. The balance of power is not what people think: the fact that "it's written in the contract" does not mean "it's legal". See also: law vs. CGU, which prevails? and our analysis of Ubisoft's CLUF.

Official references

• Directive 93/13/EEC, unfair terms (EUR-Lex)
• Directive (EU) 2019/770, digital content and services (EUR-Lex)