Numerous apps with games are offered in the various app stores (e.g., Apple App Store and Google Play) and on other websites. The respective service providers of these apps must conclude contractual arrangements with their users and also comply with legal information obligations. These can only be pre-formulated clauses that are made accessible via the app itself or websites. According to German law, such apps are subject to the law of general terms and conditions (GTC) of §§ 305 et seq. of the German Civil Code (BGB). In addition, numerous other legal provisions must be observed. I would like to introduce some special features here.
GTC of stores
If the app is to be obtained via stores (App Store, Google Play, etc.), the extensive terms and conditions of these marketplace providers must be observed. The store terms and conditions oblige the provider to pass on a large number of regulations to the end users. In particular, the GTC of stores also regulate extended rights of use (e.g., within a family group), which must be adopted by the game app GTC.
Typical GTC problem areas
As with all GTC in the Internet sector, there is always the problem of how to include the GTC in the contract. The inclusion must take place at the conclusion of the contract. This is particularly important for cost-free games, where providers only require limited information for registration. A reference to the data protection regulations should also be made at this point.
Protection of minors
If the game is aimed at children and adolescents, it should be borne in mind that persons up to the age of 6 years are legally incapacitated and between 7 and 18 years of age have only limited legal capacity. If the user is legally incapacitated, contracts cannot be concluded. The declarations of the legally incapacitated party (offer, acceptance) are null and void. A person who has reached the age of seven but is not yet of legal age (18) is a minor. A minor can conclude contracts with the consent of the legal representative. Furthermore, according to the pocket money paragraph in § 110 BGB, contracts are valid if the minor is acting with means that have been made available to him or her for this purpose or at his or her own disposal by the legal representative or third parties. If the parents give a minor a gift card for an app store, for example, the corresponding app purchases are effective in case of doubt. However, it is questionable whether further in-app purchases are allowed beyond that.
In addition, the service provider must comply with the provisions for the protection of minors (e.g., age ratings). Whether the game is a pure game of skill or a game of chance is relevant here. In the case of the latter, the gambling monopoly is generally held by the state, and under youth protection law, such games of chance are generally considered to impair the development of the minor. In this case, the legal admissibility will have to be strictly examined. One should check carefully whether the app allows in-app sales or profits are distributed.
Advertisement
Many game apps include in-game advertising. This happens especially in games that want to convey a certain realism (for example, because the player acts on realistic-looking streets or in realistic-looking cities). Here, for example, advertising posters can be placed on the roadside or on house walls and can be, for example, static (a fixed advertisement that always appears in the game) or dynamic (the advertisement is only temporarily played). It is also possible that certain objects (e.g., clothing, bicycles, toys) with which the users interact in the game are commercially available products. Advertising cooperations between the service providers and the advertisers are possible. These cases give rise to numerous legal problems, for example, relating to competition law or media law (Interstate Media Treaty/Medienstaatsvertrag). In particular, care must be taken here to ensure appropriate separation between advertising and the computer game itself. It cannot be advertising disguised as information.
Privacy policy
In addition to extensive general terms and conditions, the game publisher must also provide appropriate data protection notices. Caution is advised when personal data is to be transmitted to third parties (such as advertising partners). The same applies if users are to receive push messages. In this case, it must always be checked to what extent separate consents must be obtained from the user or to what extent data use without such consent is possible in exceptional cases.
English language versions of the GTC
As a rule, it is also necessary to have English-language GTC in addition to German GTC. Caution should be exercised when translating these GTC into English. Translation by non-legal translators or by AI programs is not recommended. Many legal terms from German law have no equivalent in American law. Such a translation should be prepared by a lawyer trained in both languages.
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