The Norwegian Consumer Council (NCC) has accused Nintendo of breaking European consumer laws. They believe that Nintendo’s refund policy for digital pre-orders is a direct violation of the law. Nintendo currently prohibits consumers from refunding a digital pre-order, even if the game hasn’t been released. While the NCC specifically addresses European law and EU consumers, this extends to all Nintendo eShop users.

How are they breaking the law?

The NCC made their accusations and demands clear in an open letter to Nintendo. As part of a survey into digital stores, they found that Nintendo have a strict “all sales are final” policy. This is both legal and common in online stores, with PlayStation and Xbox having only slightly more lenient refund policies. As the NCC states, article 16(m) of the Consumer Rights Directive outlines that the consumer loses the right of refund when they purchase and receive the digital content. It is in the receiving or “supplying” of the digital content where Nintendo violate the directive. Although they have technically purchased the game, they have not and cannot receive or be “supplied” with the unreleased game. As Nintendo is denying the consumer’s right to refund a game they haven’t played, they are breaching the law.

In light of this, the FCC outlined three questions to Nintendo:

• Can consumers freely cancel or withdraw from a pre-order or pre-purchase before the release of the game?
• If yes, how does the consumer proceed to forward such a claim?
• If not, please explain the legal reasoning.

  

  Nintendo's next big title, Kirby Star Allies, is available for preorder now

Struggling to adapt

This is not the first instance where Nintendo poorly adapted to online gaming and content delivery. From still using the outdated the “friend codes” of the DS, to no third-party Switch apps, Nintendo have struggled to adapt. On other consoles, consumers can easily download and play online games, stream entertainment services like Netflix, and even maintain a profile across console generations. Meanwhile, the Nintendo Switch doesn’t even have a web browser. The Nintendo eShop and their illegal preorder policy is another indication of Nintendo’s failure to modernise. While titles like last year’s Zelda and Mario showed that Nintendo can deliver solid gaming experiences, the industry is moving online. With the PlayStation Store, Xbox Live Marketplace and Steam so far ahead, how long can Nintendo play catch up.

Super Mario Odyssey is one of the Switch's biggest hits

This news is especially worrying as Nintendo is set to launch their paid online service, Nintendo Switch online. While a paid model would help improve the service, Nintendo can’t expect customers to pay for an inadequate service. Nintendo Switch Online needs to be on par with industry leaders, PSN and Xbox Live. The service is set to launch in September and is already off to a worrying start. For example, the backend of connecting with friends, such as inviting them to play and voice chatting, is done through a mobile app, not the console itself. The service does not have a free option, meaning current free users change subscriptions by the September launch. Most worrying of all is that only a handful of countries, with Australia not included, have been confirmed. However, Nintendo is offering a catalogue of classic games, such as Super Mario Bros. 3, Dr. Mario, and Balloon Fight. This may be the defining feature of the service. With Nintendo’s huge catalogue of 1^st party titles, a EA Access or Xbox Live Game Pass styled service would be a huge success.

Nintendo is yet to comment on the letter.