Activision Under Investigation for False Advertising

Just a follow up to this previous post in February explaining how Activision mislead consumers on the new Call of Duty Elite Premium service. The Competition Bureau of Canada got back to us. They do not deal with false or misleading advertising complaints relating to online media from consumers, however the Ministry of Consumer and Business Services in Ontario where we are based does.

The complaint has been sent into the Ministry a few months ago, and we do have some back and forth from Activision and the Ministry on this. Basically Activision is stating that it's a well known fact that Microsoft would get the map packs first, so no advertising was necessary prior to release of the game. When pushed by the ministry and myself for dates with respect to the "disclosure" of these well known facts, Activision has pointed to the service agreement on the Elite Website which wasn't available for most consumers to view until after release in November of 2011 and due to technical problems the site was down until December 2011 which effected account sign ups.

We strongly believe that Elite being a new service, Activision had a legal obligation to disclose that XBOX users would receive content first for the Elite Premium service. For consumers in Ontario we believe Activision is currently against this provision in the Ontario Consumer Protection Act, and that Acitivision purposely mislead consumers by not disclosing the XBOX deal knowing that it would have negatively effected pre-order sales into the Elite Premium Services on the PS3 platform:

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_02c30_e.htm

False, misleading or deceptive representation

14. (1) It is an unfair practice for a person to make a false, misleading or deceptive representation. 2002, c. 30, Sched. A, s. 14 (1).

Examples of false, misleading or deceptive representations

(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

5. A representation that the goods have been used to an extent that is materially different from the fact.

6. A representation that the goods or services are available for a reason that does not exist.

8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.

9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.

14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.

The Ministry is still looking into this case, and those of you who are living in Ontario who wish to get a refund for the Elite premium service (only if you have pre-ordered the PS3 hardened edition or purchased Elite premium memberships between release date in November 2011 and first week of December 2011), should notify the Ministry of Consumer and Business services, and file a complaint while copying and pasting the above quoted law. The Ministry has not acted yet, but we feel they will if there are more complaints involved. You will have to fill out individual complaints, however in the body of your complaint only, you may reference our complain # which is 516681 as well as my name.

The Ministry's online complaint form is located here:

https://www.consumerbeware.mgs.gov.on.ca/compform/english/complaint.asp

Jason Koblovsky

Canadian Gamers Organization