Although there is discussion about how these microtransactions are used by developers, the CIJDF Technical Note makes it clear that, legally speaking, loot boxes are not games of chance.
“Trying to equalize practices for comparison purposes generates a false symmetry, because they are completely different activities,” says lawyer and specialist in games and eSports Marcelo Mattoso, partner at Barcellos Tucunduva Advogados.
“By legal definition (art. 50, §3, item “a” of the Criminal Misdemeanors Law), gambling is the 'game in which the gain or loss depends exclusively on luck'. In other words, based on what is extracted from the text of the law, three elements are necessary to characterize this concept: to be a game; involve a gain and a loss; depend exclusively or mainly on luck.”
Thus, the expert reiterates that the loot boxes are:
According to Mattoso, the Technical Note goes further by leaving a very pertinent example: “If we understand that loot boxes are games of chance, we would mean that packs of stickers to complete albums of soccer players, extremely common in World Cup years; collectible cards like Pokémon TGC, Magic The Gathering or Yu-Gi-Oh! - the famous chocolate kinder egg, would also be games of chance. Such products have already been part of our society for years and their use has never been questioned as gambling, precisely because they do not have such characteristics.”
Even so, the Technical Note makes it clear that the document "has a simple recommendation and informative nature."
“The Note does not have the force of law or binding in court cases, but it was prepared to shed some light on the subject and can indeed be used to support the subject. Despite being detailed, it is an instructive document that brings up numerous important concepts. The fruitful point for the debate is that it makes it clear that loot boxes and gambling are completely different things and should be treated separately. Based on this premise, I believe that discussions on both topics can move forward without mixing, generating security for both markets and for society in general.”
Although the discussion is necessary, the theme seems to be much more a way to inform parents and guardians in the electronic games scenario than a way to demand action from developers.
The expert considers, however, that “what we can extract here is the awareness of how loot boxes work and what is their role within electronic games; bring information about the issue and make the market, the community and society reflect on the topic in a healthy way; and understand how to use these mechanisms in a sustainable way to enable 'free' games.”
For Mattoso, “the eSports scenario, for example, is fostered, for the most part, by games that have the ‘freemium’ model backed by loot boxes: an entire existing ecosystem and is made possible by them, so to speak.”
Source: GMB
