Sony’s recent dynamic pricing experiment on the PlayStation Store, which offers different game prices to different people, might violate European law, a new report has found.
Danish publication Arkaden heard from several experts in the field about how Sony’s lack of transparency regarding its pricing experiments seemed to fall outside of what’s currently legally allowed in Europe.
Specifically, the move seems to contravene EU Directive 2011/83/EU. This states that if a company is using personalised pricing then it must communicate this fact to an end user “in a clear and comprehensible manner”.
There’s a caveat here. Strictly speaking, Sony might not be engaging in personalised pricing because it’s “segmenting” prices in other, undisclosed ways, the report said. One of these seems to be adjusting prices for logged-in PlayStation users versus logged-out users, but the other ways prices are being adjusted are harder to categorise.
Nevertheless, Dr. Peter Rott – co-author of an EU study on personalised pricing and professor of law at Carl von Ossietzky University of Oldenburg – said this doesn’t exempt Sony from this EU legislation. “I would think that Article 6(1)(ea) of the Consumer Rights Directive still applies,” he told Arkaden (in a translation kindly offered by the article’s author, Jakob Hansen).
Jan Trzaskowski, a professor of law at Aalborg University – who’s studied areas such as consumer protection, data regulation and IT law for 30 years – seemed to agree. “Fundamentally, the problem is that you are offered a specific price because of who you are,” Trazaskowski said. “It doesn’t matter whether you have been tracked across various platforms or whether you have been placed in a segment. The intent of the legislation favours a broad interpretation of automated decision-making in this context.”
It’s worth noting here that while it sounds odious, automated personalised pricing isn’t a new phenomenon, though it’s on the rise. Nor is it exclusive to Sony and PlayStation in the gaming space. Microsoft has used personalised prices on Xbox since 2022, with the crucial difference being that Microsoft tells you this is the case, offering the deals in a “Just for You” section.
That Sony is using personalised pricing isn’t the problem, then, legally speaking. The problem is not disclosing it upfront. But Sony’s actions may also contravene another EU Directive, 2005/29/EC, which states “a commercial practice shall be regarded as misleading” if it “omits material information that the average consumer needs according to the context, to take an informed transactional decision”.
“There is absolutely no case law on this,” Dr Rott stated, “but I would still argue that it is ‘material information’ in the terms of that provision whether or not I might be the random victim of price differentiation between testing groups.”
Sony did not respond to Arkaden’s request for comment about the experts’ assessments, and because this is such a new area of legislation, any legal action would break new ground. And, as the report noted, even if Sony were found to have broken EU consumer law, it probably wouldn’t have major consequences.
“In the worst case, they could face a fine,” said Christian Bergqvist, associate professor at the University of Copenhagen. “But that won’t make much difference to a company of Sony’s size. There may, however, also be competition law aspects to the case.”
Nevertheless, this isn’t happening in a vacuum. Sony is currently facing a near £2bn lawsuit in the UK regarding the company’s alleged monopoly on digital PlayStation Store pricing and inflated game prices there. Taking a cut of 30 percent used to be standard practice for a platform holder, but as Epic scores another victory over Apple in this regard, and Google lowers its take to around 20 percent, the pressure is on Sony to make a change.
