Claiming Damages for Loss of Digital Content under Warranty Repair

latenight

Hi All,

I have an issue with a Nintendo Switch console, or more specifically faulty joycons.

The switch belongs to my young children, who during the time they have owned it have amassed a lot of progress in a number of games, which inldudes access to levels, special characters, costumes, etc. This data is saved locally on the console.

For those unfamiliar with the Switch, the joycons (controllers) can be attached to or removed from the body of the console and are also sold separately. Both joycons have developed a fault. The Switch was purchased second hand from CEX and came with a 24 month warranty, and I am less than a year into it. I've had no previous issues with the Switch.

The store have tested the joycons and have confirmed they are faulty, but will only offer a replacement for the entire console. All of the saved data is stored locally on the device and can't be copied or backed up, other than copying it from one console to another and the data is deleted from the old console in the process so that it can only ever exist on once console at any given time.

CEX have lots of joycons in stock but won't provide these as replacements. They also have an in-house repair service but won't repair my damaged joycons. They also won't allow me to connect my current console to any replacement that they offer so that I can back up the game save data.

To lose all of this progress would devastate my boys. I would class the save data as digital content, albeit content created by my sons.

The MSE guide on "How to Complain" states:

"In both cases – before and after six months – you’re also entitled to ask for other remedies or damages. This generally means you should be put back into the same position you were in before things went wrong." [Emphasis from the guide, not mine!]

Unfortunately I can't find anything in the Consumer Rights Act 2015 that would suggest that this is a statutory right.

I think that CEX are being completely unreasonable by insisting that I forefeit all of the saved data rather than simply provide replacement joycons off the shelf or repair the faulty joycons. My console has also been tested and is working perfectly, so there is no logical reason that it and the save data needs to be taken away from my kids.

Any advice on how to protect the save data while also having functioning replacement joycons would be greatly appreciated.

Complaining to head office hasn't worked, hence turning to the legislation and the wisdom of the MSE forums.

screech_78

Your data should always be backed up. And giving how devastated your son will be, I’m amazed you haven’t done this. 

Having a switch myself, everything is stored on a micro SD card. Can’t see you getting anywhere, I’m afraid. 

km1500

I don't have this console myself but reading between the lines of the previous post it seems you can back up the data to a micro SD card

 once you have done this you can then send the console off for repair

the_lunatic_is_in_my_head

Hello OP

Whilst I would say you are entitled to, based upon what I’ve read, your choice of repair or replace (with some caveats that don’t apply in this case) you would be better off backing up the data and accepting the new Switch.

If you take out a year’s membership the Nintendo site says it backs up your data automatically.

Or above via an SD card. 

Whilst perhaps correct, enforcing the value of a Joy Con controller isn’t particularly practical and a new console seems to be a better deal. 

Damages come under common law and generally you’d be entitled to be in the position you would have been in had the breach (faulty goods in this case) not occurred but you have a duty to mitigate (lessen) such losses and backing up the data is least expensive method

RichardD1970

screech_78 said:

Your data should always be backed up. And giving how devastated your son will be, I’m amazed you haven’t done this. 

Having a switch myself, everything is stored on a micro SD card. Can’t see you getting anywhere, I’m afraid. 

Save game data is only held in system memory and can't be saved to SD card. 

https://www.nintendo.com/ph/support/switch/data_management/index.html

powerful_Rogue

https://www.nintendo.co.uk/Support/Nintendo-Switch/How-to-Back-Up-Save-Data-1434307.html