The ACCC’s Case Against Valve Is Going To The High Court

A couple of years ago, the Federal Court fined Valve $3 million for failing to offer Australian gamers refunds from 2011 to 2014. But the fight is ongoing – and it’s set to continue in the High Court.

It’s been a while since the Australian Competition and Consumer Commission won their case against Valve. The case, originally filed in August 2014, hinged on Valve’s failure to provide refunds for Australian gamers.

The Australian Federal Court Has Fined Valve $3 Million In a hearing earlier this afternoon, the Federal Court has fined Valve $3 million over breaches of Australian consumer law for their lack of an advertised refund policy on Steam from 2011 to 2014. Read more

Here's Precisely Why Valve Lost To The ACCC In Federal Court As reported earlier this week, the Federal Court ruled that Valve was guilty of breaching Australian Consumer Law. The major issue: the Australian Competition and Consumer Commission (ACCC) claimed Valve was misleading Australian consumers by stating they were not entitled to refund when, according to Australian Consumer Law, they were. We've now been given access to the full reasons for the judgement against Valve. We now know precisely why they lost the case. Read more

But thanks to Jonny Roses, the public affairs and policy lawyer for the Interactive Games and Entertainment Association, it’s been revealed that Valve has filed a “special leave application” to the High Court to appeal the ruling and Justice Edelman’s $3 million fine.

A list of the appeals and related documents filed for the case, with the most recent appeal filed late on January 19

Observers don’t expect Valve to succeed with their appeal, mind you. Justices Dowsett, McKerracher and Moshinsky ruled just before Christmas last year that Justice Edelman had handled the case properly throughout, backing his judgement, deliberation process and the size of the fine. The full judgement can be read on AustLII or the Federal Court website, but here’s the snippet:

We note that Valve does not challenge the primary judge’s discussion of the legal principles at [8]-[13] of the Relief Reasons. The challenge is to his Honour’s application of those principles on the facts of the present case. But in our view, no error is shown in his Honour’s approach. His Honour had regard to all the relevant factors and did not take into account matters that were extraneous to the exercise of the penalty discretion. In particular, his Honour properly had regard both to specific and general deterrence. … We do not consider that any error has been shown in the primary judge’s approach to the determination of the appropriate penalty, and we do not consider the penalty that he imposed to be manifestly excessive.

As an added bonus, on appeal the judges noted that Valve “appears to have done relatively little to train its support staff about Australian legal requirements”.

The original decision ordered that Valve pay a $3 million fine and post a notice on the Steam website and through the client that would be displayed to Australian users. Both of those will be postponed pending the result of the appeal. No date has been set for the hearing.