According to a recent report by Arkaden, Denmark ‘ s largest game media, some industry experts believe that Sony offers dynamic pricing tests for different prices for different PlayStation users, possibly because of a lack of transparency that is contrary to European law.
In particular, Sony ‘ s dynamic pricing strategy appears to be in violation of EU Directive 2011/83/EU. The directive provides that if the company uses individualized pricing, the user must be informed of this fact “in a clear and comprehensible manner”.
The report notes that, strictly speaking, Sony may not have used individualized pricing, as it “subdivided” prices in an undisclosed manner. One of these appears to be price adjustment based on landing and unlogged users, but other price adjustments are difficult to classify.
However, according to Peter Rott, co-author of the EU Individualized Pricing Study, Professor of Law, this does not mean that Sony is exempt from EU regulations. In an interview with Arkaden, Peter Roth said: “I believe that article 6(1)(ea) of the Consumer’s Rights Directive is still applicable.”
Jan Tzaskovsky, a law professor at the University of Orburg (which has been studying the areas of consumer protection, data regulation and IT law for 30 years), agrees: “The problem lies in the fact that players are given specific prices because of their status. Whether you are tracked across platforms or classified as a special group is irrelevant. In this context, legislative intent favours a broad interpretation of automated decision-making.”
While it may be objectionable to raise it, individualized pricing is not unique to Sony and its development is becoming increasingly evident. Microsoft adopted a personalized pricing strategy on the Xbox as early as 2022, the key difference being that Microsoft would clearly inform users and provide it in an “exclusive preference”.
From a legal point of view, it is not inappropriate for Sony to adopt individualized pricing per se. The problem was that there was no advance disclosure. But Sony’s conduct may also be contrary to another EU Directive (2005/29/EC), which provides that a commercial act “shall be deemed to be misleading if it “neglects significant information from the general consumer that informed transactional decision-making is required by the circumstances”.
According to Peter Roth: “There is no case law at all in this respect, but I still believe that it would be possible for me to be the random victim of price differentials between test teams, which is `significant information’ in the article.” As this is an entirely new area of legislation, any legal action will be pioneering. Moreover, as noted in the report, even if Sony was found to be in violation of EU consumer law, there could be no significant consequences.
Christian Bergkvist, Associate Professor at the University of Copenhagen, said: “In the worst cases, they may face fines. But for a company of the size of Sony, this would have no significant impact. However, the case may also involve elements of competition law.”
However, this is not an isolated case. Sony is currently facing a £2 billion lawsuit in the United Kingdom, alleging that it monopolized the price of PlayStation’s digital game and raised the price of the game. In the past, the platform would draw 30 per cent of the trade, but with Epic winning a legal dispute with Apple and Google, Google has reduced the ratio to 20 per cent, and Sony may be under the same pressure.
