Crimes and cheats in online games: criminal aspects and the relevance of the Terms of Use

As users of computer programs, applications, and other technological resources, it is hard to deny the growing perception that illegal actions that were once defined as crimes only in the ‘real world’ are, in different ways, being committed online and with even greater sophistication. We are not just referring to attempts to obtain credit card information and other financial crimes. The virtual world allows for the monetization of unlawful actions that sometimes go unnoticed by common sense.

As an example, the use and sale of cheats for many online games are not uncommon. The source code of the software is modified so the user has advantages in relation to other players, such as the possibility of seeing through walls, obtaining different and better weapons, or ‘aim assist’, amongst other allowances that are not part of the rules established by the manufacturer.

Even though this happens in an environment built for entertainment, such acts are forbidden by law. In the aforementioned example, the sale of cheats can result in imprisonment from 1 to 4 years and a fine under Article 12 of Law No. 9,609/1998 (Brazilian Software Law). When the sale of cheats happens with the name and logo of the game, it can also be considered copyright infringement, which can result in improisonment from 3 months to 1 year and a fine, according to Article 189 of Law No. 9,279/96.

However, although there are legal instruments that forbid illegal actions on the internet, it is progressively evident that the terms of use have also gained importance as guidelines of conduct and have become increasingly relevant instruments to maintain a healthy environment in the virtual world.

When it comes to software, the terms of service will normally be the license agreement itself, according to Article 9 of the Brazilian Software Law. But software developers can also set terms of use for their products and services in addition to the license agreement, which is very common for online gaming programs.

For internet application providers the terms of use are even more relevant as they tend to be the main contractual instrument that regulates their relationship with users. As an example, depending on the type of platform and service provided, rules may be established to forbid the publication of offensive content.

It is not unusual for internet application providers and software developers to ban or suspend users who violate the terms of use. Some users rely on courts in an attempt to get back to the platforms. However, there is a development of case law attributing a binding nature to the terms of use, which justifies the ban or suspension.

Enforcing the law to users: regular exercise of rights

The relationship between users and software developer or internet application provider is a private one, which is executed from the moment the user agrees to the terms of use. Within this relationship, the software providers/developers are free to create the policies they deem convenient and necessary for the provision of their services, as long as they are clearly available to users.

It is common for the terms of use of internet application providers to detail the possibility of deleting accounts or suspending services if their rules are breached. Such provisions, in the first place, are necessary to make the terms of use operative. Secondly, they find support in Articles 474 and 475 of the Brazilian Civil Code, which allow for the termination of the contract by default, especially when there is an express resolution clause which can be enforced automatically simply by notifying the defaulting party.

In this sense, clauses that provide for the possibility of suspension or banning of users in the terms of use may be considered express resolution clauses, and their enforcement is nothing more than the regular exercise of rights according to Article 188, item I, of the Brazilian Civil Code.

The possibility of deleting or suspending users’ accounts based on non-compliance with the terms of use has been recognized in courts. In a recent Lower Court’s judgment in Guarulhos (SP) published on July 15, 2020 (case No. 1048215-36.2019.8.26.0224), it was understood that the platform administrator regularly exercised its right by banning an user who violated the terms of use by using malicious software that conferred advantages over other users.

Also, the State Court of Appeals of São Paulo have decided in the same way. In one case in which an user of an online gaming software used unauthorized software and several accounts to transfer virtual currencies – breaching the terms of use of the game – the State Court of Appeals of São Paulo considered that banning his account was legal and a regular exercise of rights. Likewise, on another case concerning an online sales platform in which the same bank account was used by two different users’ accounts, it was considered lawful to suspend one of the accounts until the problem was solved because the situation breached the terms of use the user had agreed to.

Terms of use: legal certainty for companies and users

The terms of use have been recognized as relevant instruments to guide conducts in a virtual environment. They clarify the services provided and establish rules for their good use, which encourages good practices on the internet, as established by Article 3, item V, of Law No. 12,965/2014 (Brazilian Civil Rights Framework for the Internet).

For the market, the recognition of the binding nature of the terms of use provides relevant legal certainty. As users who violate the rules established for the use of products and services can be sanctioned, the business itself remains commercially viable, since many users would stop using the platforms if they experienced frequent unethical or harmful conducts without the possibility of restraining the offenders.

For users, the binding nature of the terms of use is also very beneficial, as the banning of those who use unfair advantages guarantees equality between users, which is even more relevant for certain sectors that have become more and more professionalized, such as the E-sports industry.

Therefore, the encouragement of mandatory terms of use and the recognition that the sanctions to users who violate them are legal, support a collaborative purpose to use the internet and make a healthy environment possible.