Should disappointed gamers be able to get a refund for No Man’s Sky?

The game doesn’t contain elements seen in the pre-release footage – but can players get their money back?

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Now and again a video game makes headlines in the mainstream media, usually for controversially violent content or unprecedented popularity. No Man’s Sky from Hello Games, a small independent British games studio, has crossed over into the mainstream consciousness for a different reason: players are saying, en masse, that they want their money back.

No Man’s Sky is certainly an unusual game. The player zips around a galaxy in a spaceship, landing on and exploring planets and naming any plants or animals they find. These discoveries are uploaded to a central database – a sort of Hitchhikers’ Guide crossed with a garden centre – in return for currency. The player also has to fend off alien attackers and ensure survival from the elements. There’s a plot of sorts, but it’s secondary to gameplay and has been criticised as adding little to the experience. The main criticism, however, is that No Man’s Sky doesn’t contain some of the features consumers expected from pre-release footage. Some of these missing features – like multiplayer or unique planetary physics – are not trivial and arguably central to players’ expectations. This has lead to a rash of amateur internet sleuthing to “prove” the game is substantially different to that promised, including trivial details such as “no rivers”. I doubt anyone bought No Man’s Sky for the rivers, but the cumulative effect is one of disappointment for many players. There is an issue of whether that disappointment is the result of unreasonable expectations, and whose fault the hype is, but the fact remains that many people bought a top-price game, didn’t have fun, and want a refund. But are they right? Should a consumer be entitled to a refund for a subjective experience like fun?

Jesse Schell, in his book The Art of Game Design, hits on a reasonable definition for fun: “Fun is pleasure with surprises.” Sean Murray of Hello Games – who received death threats when the game was delayed – tweeted in July, “we’ve spent years filling No Man's Sky with surprises”, and it is this sort of well-meant hyperbole that has infuriated gamers. It is almost impossible to live up to the expectation that “years of surprises” creates, and it’s that expectation that dictates whether the game is fun. The trouble is, you don’t really know if a game is fun until you’ve played it for a while, and that’s where the refund issue becomes complicated. 

A recent rumour had it that Steam (the online games retailer) was giving refunds for No Man’s Sky regardless of playtime. The standard Steam refund policy is 14 days and less than two hours playtime, and Steam quickly moved to deny the exception rumours. However, Steam’s refund policies don’t necessarily mean much. Under Consumer Contracts Regulations (replacing the Distance Selling Regulations in 2014) Europeans can’t sign away our basic right to sue or get a replacement or refund, which is a good thing (cause who reads EULAs?).

That’s not to say businesses don’t have rights too. If you buy a physical copy of a game from an online shop and open it, it’s immediately worth less money and returning it represents an actual loss to the retailer. They can’t sell it for full price to someone else. That’s one of the reasons sealed items like games are exempt from Consumer Contracts Regulations (the other more obvious reason is piracy) which otherwise give you 14 days to return anything you bought online. 

It’s more complicated for digital downloads. The piracy risk is still present, but no-one can argue that the retailer can’t resell “your” copy of a downloaded game. However, once you begin the download, your 14 day right to cancel disappears. It’s easy to see why this caveat is in place, as a lot of people would request a refund after completing the game (indeed that is exactly what happened with No Man’s Sky). But this exception has its own exception. A player is still entitled to a refund is if the downloaded game is “not of satisfactory quality; not fit for a particular purpose; or not as described by the seller”.

When controversial games like No Man’s Sky come along, these exceptions get tested to their limits. What constitutes “fit for purpose”? Bugs and performance problems, definitely. Some PC players reported it as unplayable. The game not being as fun as expected? Not so clear. And then we’re left with seller description. No Man’s Sky is missing features that were in trailers, but players might reasonably include Sean Murray’s promise of “surprises” as part of the description.

In 2013 the Advertising Standards Authority “informally resolved” a complaint about Aliens: Colonial Marines, agreeing that the final game was different enough to the trailers for SEGA to slap a disclaimer on any future advertising. Had No Man’s Sky trailers included a disclaimer that the final game may differ, much of the controversy and debate might have been avoided. Instead, anyone seeking a refund on the basis of “not as described” is probably going to get one, whether they had any fun or not.