Are enraged gamers as safe behind a keyboard as they think? Our gaming lawyer investigates.
By Patrick Vuleta on August 26, 2013 at 5:35 pm
Gamer rage is on the rise, threatening developers’ livelihoods — quite literally. The case of Jennifer Hepler, a former BioWare writer, is well known. Hepler received death threats against herself and her children for her role as one of Dragon Age 2’s writers.
The rather less well known case of Joel Bylos, game director of The Secret World, is the opposite. Commenting on the polite behaviour of the game’s community, Joel wrote last week that the community was “a major factor in my decision to stay on as Game Director for the game.”
How the gaming public reacts to a developer is becoming a major factor in where—and even if these developers choose to work. And why not? Aside from unwarranted abuse, rage campaigns can have significant reputation impacts. If the gaming community invents lies about your professionalism, that’s not something you want cached by Google for eternity.
This isn’t, however, yet another article telling you all to stop being entitled children. It is an article about consequences, and punishment. If you tell someone they deserve to be fired for their gender, you can expect a punch in the face (either gender). If you call and make a death threat, you can expect a visit from the police. If you publish a newspaper article about a professional sportsperson’s orientation and lack of sporting talent that somehow follows from that, you can expect a lawsuit.
Yet online, consequences are rare. Behind my computer, I’m safe, and no one can hurt me. But could developers strike back with real consequences for gamers who spread lies?
The law’s original response to this issue was duelling. After a bit of glove slapping, you and the insufferable slanderer grabbed swords, found a bit of open space, and went at it. Sadly, duelling has been outlawed for several centuries now.
Defamation law was invented to fill the gap. This has allowed people to sue others when published lies have caused them financial or reputational harm. So if Bill, from accounting, writes an open letter to your boss that your end of year company report was a simplistic collection of blue, green, and red pie charts, something that an annoying five year old could draw, and that makes you a **** ******* **** who **** too many ****—and hence deserve to be fired, then you can sue him! (As long as those allegations are untrue and he refuses to retract his statements.)
Defamation law on the internet is very much a new thing, but is starting to take shape. In 2011, a Melbourne man successfully sued Google for $200,000 after Google refused to remove search engine results linking him to a drug lord. He also won $225,000 from Yahoo.
Key in this case, as with all successful defamation cases, is that the lie hurt someone on a financial level, and that the publisher refused to retract the information, despite having a clear ability to do so.
Do developers have a case?
If a gamer invents a lie, and writes it on the internet, then that fulfils the first two requirements of published libel. The main issue would be if the comments were strong enough to actually harm the developer’s finances or reputation.
There are two cases where this could indeed be possible.
The first is when a developer is made out to be single-handedly responsible for the failings of an entire game. Most games are subjected to a variety of creative, technical, and financial constraints. Rather than outright negligence, games often just fail for too much meddling. Our recent review of The Bureau: XCOM Declassified showed what results from trying to pile in too much at once.
The Hepler case is a great example of how this can affect developers. Some fans have lambasted her as being singlehandedly responsible for Dragon Age 2’s failings. Yet as a writer, she had no control over much of the game’s design. Although most in the development industry are sympathetic to Hepler and do not actually blame her, there is a danger that she becomes seen as more responsible than she should be for Dragon Age 2.
The second case is where a developer is looking to finance games through Kickstarter. Games that succeed on Kickstarter typically do so because of the personal talent behind the game. Just mention you’re a celebrity with a highly experienced team that wants to try something “innovative” and you’ll probably make money.
This highlights how important reputations are in game development, over and above talent, sensible game design, and interest from publishers. Not just within the industry, but with the gaming community at large. A gamer hate train could indeed hurt your prospects to raise funds in the future. While untested, it would be an arguable case.
Who’d be sued?
Unfortunately, the sheer size of gaming communities makes it difficult for developers to rely on lawsuits. Lawsuits are expensive, and taking defamation law to your average anonymous gamer is very much a sledgehammer to a nut.
Developers will have more success on two fronts. First, targeting any outside sites used to organise smear campaigns. With Google now established as a potential defendant in online defamation cases, it should also be possible to get defamatory websites delisted from the search engines.
Second, we’re likely to see moderation of developer’s social websites become much heavier. Defamation is done by the publisher of the material, and ironically, much of it happens on the forums provided by the developer’s publisher. Should a developer complain to their publisher that they feel a particular post is defamatory, then the publisher has an obligation to investigate, and if defamatory, remove the post. Developers have not typically used this right in the past, preferring to be seen as benevolent overlords. However, when communities abuse those privileges, some resistance is to be expected.
And sure, it’s likely that some gamers would see either of these as heavy handed. But I doubt wishful thinking about entitlement will ever move some gaming communities to a better standard of behaviour. The only solution is to crack down on the nuts.
Header image courtesy Cadred.