In that thread, we were testing the "legality" of the pact as it relates to competition laws, and also to get more info on what market impact this pact has had on the 3 different consoles. Market analysis by the regulator proved that this pact between MS and Activision had no impact on XBOX sales in Canada. PS3 and XBOX systems are virtually tied in sales up here. There was also a question whether "tied selling" applied to this pact and whether or not it was legal. Tied selling is not legal in Canada and did apply with the Activision and Microsoft pact, but in order to put financial fines specifically from the regulator on the company, there would have to be significant market impact. Meaning XBOX's sales would have had to be up more than 50% specifically due to this pact, before the regulator would act. In theory Activision can be sued in Canada for this pact in civil court because "tied selling" isn't legal, but because there is virtually no market impact, it would be hard to prove damages. Canadian courts usually don't award much on punitive damage awards as they would in the US for not following law. Our courts usually award more for statutory damages, meaning actual damages and in this case that would be more Sony's responsibility, not ours as far as diminished market sales and so forth.
What we've started in this thread is the same federal regulator, but completely different. What would be studied with the advertising complaint as far as market analysis in the complaint is whether or not disclosing the information on the Elite content delay for the PS3 would have had a negative impact on Elite Premium sales, whether that was known by Activision and whether or not that was the reason why they left it out.
I'm a elite premium subscriber, and I sure as hell wouldn't have touched the hardened edition, or purchased elite myself if we knew releases were going to be delayed. I think a lot of people feel this way, so I think there's evidence to support this. Lots of comments online about it.
It is great to hear that the Canadian Gamer Organization is advocating for equality on all consoles.
However, I think the CGO should be filing a complaint about how Elite holds their competitions. They state that they are "skill" contests, but there is so much chance involved that I do not think it can be considered a game of skill. I have filed a complaint in the US and made this thread discussing it here:
I do not know the laws in Canada, but in the US I feel that Elite is running an illegal gambling operation. I am only one person and thus I have not heard anything back about this issue, but if a consumer advocay group like the CGO presses this issue in Canada maybe then something will be done about it.
Tied selling is not legal in Canada and did apply with the Activision and Microsoft pact, but in order to put financial fines specifically from the regulator on the company, there would have to be significant market impact. Meaning XBOX's sales would have had to be up more than 50% specifically due to this pact, before the regulator would act. In theory Activision can be sued in Canada for this pact in civil court because "tied selling" isn't legal, but because there is virtually no market impact, it would be hard to prove damages. Canadian courts usually don't award much on punitive damage awards as they would in the US for not following law. Our courts usually award more for statutory damages, meaning actual damages and in this case that would be more Sony's responsibility, not ours as far as diminished market sales and so forth.
You probably would have had the added problem that it's not tied selling.
Just a follow up to this. Today is August 13th, 2012. The Competition Bureau of Canada got back to us. They do not deal with false or misleading advertising complaints relating to online media from consumers, however the Ministry of Consumer and Business Services does.
The complaint has been sent into the Ministry a few months ago, and I do have some back and forth from Activision and the Ministry on this. Basically Activision is stating that it's a well known fact that Microsoft would get the map packs first, so no advertising was necessary. When pushed by the ministry and myself for dates with respect to the "disclosure" of these well known facts, Activision has pointed to the service agreement on the Elite Website which wasn't available for consumers to view until after purchase in December of 2011.
We strongly believe that Elite being a new service, Activision had a legal obligation to disclose that XBOX users would receive content first. For consumers in Ontario we believe Activision is currently against this provision in the Ontario Consumer Protection Act, and that Acitivision purposely mislead consumers by not disclosing the XBOX deal knowing that it would have cost pre-order sales into the Elite Premium Services on the PS3 platform:
False, misleading or deceptive representation
- 14. (1) It is an unfair practice for a person to make a false, misleading or deceptive representation. 2002, c. 30, Sched. A, s. 14 (1).
Examples of false, misleading or deceptive representations
(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:
- 5. A representation that the goods have been used to an extent that is materially different from the fact.
- 6. A representation that the goods or services are available for a reason that does not exist.
- 8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.
- 9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.
- 14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.
The Ministry is still looking into this case, and those of you who are living in Ontario who wish to get a refund for the Elite premium service (only if you have pre-ordered the hardend edition), should notify the Ministry of Consumer and Business services, and file a complaint while copying and pasting the above quoted law. The Ministry has not acted yet, but will if there are more complaints involved. You will have to fill out individual complaints, however in the body of your complaint only, you may reference our complain # which is 516681.
Online complaints submission to the Ministry of Consumer and Business Services Ontario is located: https://www.consumerbeware.mgs.gov.on.ca/compform/english/complaint.asp
*Note: This is only for Ontario, Canada residents.
The fact this information was potentially withheld from consumers and it most certainly would have decreased sales of the hardened edition on the PS3 platform if it was disclosed from the comments not only on this forum, but around the web is of concern on several levels. First it's illegal in most jurisdictions to use deceptive business practices, second it's means that we did NOT get the product that was advertised or ordered, and we are not getting the DLC as advertised prior to release. This was discussed by many PS3 gamers on Activisions own blog and through gaming media a few months back as reported in the OP.
As a consumer advocacy group for gamers, we are obligated to provide this information. Games are not just games, they are products covered under law, and consumers have to start exersing their rights in order to curb this type of deceptive selling. It's really up to gamers and game consumers to decide what or what not to do from this point forward.
If you don't want to complaint, don't but for those that do we've opened the door for affected consumers on this issue as promised, it's up to those wanting to go through to do it now.
Piror to release most were lead to beleive all Elite premium members would recieve content at the same time. Activision had a legal obligation to disclose to consumers that XBOX would be getting content first under Ontario law. Please read the OP, our stance has been made clear along with a large number of PS3 premium members who voiced their concerns on this as well a few months ago.
Interesting read on misrepresentation. I am not sure if a strong enough case can be made about the DLC timeframe for XBOX vs PS3 platforms (this will be an interesting outcome)...
What is being said about Clan Operations and Clan Challenges? People who bought ELITE from the get go are not getting a full year's worth of services (or at least did not get it in the timeframe at which the product was purchased). Points 8 and 9 of misleading or deceptive representation. 2002, c. 30, Sched. A, s. 14 are highlighted here.
Like my colleague agnt-Red_Wing has eluded to: I would be very surprised if anything (significant) comes from this... safe from people thinking twice about buying ELITE again.
N.B. I am in no way supporting, condoning, or warning anyone about the purchase (or non-purchase) of ELITE products and services by my post.