The past couple of weeks have been messy. Women in the games industry are under fire, media are under fire, consumers and “gamers” are under fire, and many developers are literally throwing their hands up and saying they’ve had enough. We are seeing a wide rift between developers, media, and the consumers who enjoy video games. Much has been said, and none of it can really be taken back at this point.
We are seeing the power of unchecked communication, the dangers of unverified rumors, and we’ve borne witness time and again to a fact that we all should have learned in our early developmental years—sticks and stones can hurt people, and so can words.
There are merits and flaws to both sides of the debate. Until both sides are willing to recognize that we are all, in fact, on the same team, the fighting will almost certainly continue indefinitely in some form. Some games media have responded to this matter by minimalizing the concerns as the braying of a “small, vocal minority.” Most if not all of the developers and games media folks simply no longer know how to respond to the “cry for transparency” and the disparagements against “censorship” that populate hashtags and reddit.
As a female attorney working in the games industry, and a gamer myself, it is difficult to observe this communication collapse without some degree of personal investment.
Lawyers have little incentive to get involved in these debates, because it is the kind of fight no one can win. We may chime in on harassment and other matters that affect the legal rights and needs of our clients out of necessity. However, holding a strong opinion can create a level of unprofessionalism that can harm everyone involved. We know the power of words, and we are aware that our opinions can carry considerable weight in the minds of our clients.
So we disengage and remain as objective as humanly possible when this kind of thing happens. We often advise our clients to do the same.
That forced objectivity and silence has its merits, but our general policy of “not getting involved” until something serious happens can be harmful, too. When our clients receive death threats from their audience we feel pretty impotent. This is particularly true when the threats and harassment arise not out of criticism for the games themselves, but as personal attacks against the individuals. It’s frustrating. We are sometimes hopelessly ill-equipped to respond to this kind of problem. It’s not like we can ask them to sue their fans.
So I have seriously thought about this. Obsessed over it, even. There is no perfect answer to this problem. This is sociology, not math, and it doesn’t have a clean answer. Fortunately lawyers only ever seem to deal with non-answers, so maybe we are better equipped to talk about this than most. Below I’ve done my best to address some of the matters developers must confront when Internet Guerilla Civil War breaks out in our industry.
The First Amendment and Censorship Are Not Mutually Exclusive
If you go through the rigmarole of finding out the point of #GamerGate you will learn that its main talking points concern transparency in journalism and censorship. These are not unique complaints.
The Internet has given society a grossly inflated sense of what “freedom of speech” actually means. It is not the right to say and do whatever you want without fear of consequence. It is not the right to speak anonymously, thereby avoiding accountability. It is not the right to threaten, harass, or cajole without a single ounce of concern towards the human on the other side of the screen.
It is not a license to act like an unrepentant and unmitigated asshole.
Censorship is legal and often the most ethical choice if there is a compelling reason to do it. Every developer has a compelling interest in providing a safe, healthy, and harassment-free environment for its users and employees. Often failing to censor is both irresponsible and harmful to your product.
As developers, you have to acquire a bit of a thick skin. You are creating a product that will be consumed by the public and will necessarily become the subject of criticism and complaint. However, the form of these complaints and how you process this feedback is often within the sphere of your influence. You are not required by law to offer a forum for feedback, and if you decide to do so, you have absolute authority over those communication channels. Furthermore, if you are developing games targeted for a general or younger audience, you have a responsibility towards those children to regulate user content in a manner that prevents communications and conduct that are harmful to children.
However, censoring your audience means walking a very fine line. It also consumes a lot of time and human resources that most indie developers simply do not have. There is no magical solution to this. Making your community safe, clean, and free of vitriol can be a daunting undertaking. It also requires a commitment.
If this is a commitment you are not willing to make you should seriously consider whether or not it is worth your while and in the best interest of your product to include an open forum of communication. People will never lack a place to talk trash on the Internet. You do not need to provide another one.
There are also several legal consideration you must bear in mind when you make an open forum available on your website or through user-to-user communications in your game. A short, non-exhaustive list includes:
Each of these laws, to some extent, may hold you, the developer, accountable for what happens on your forums or in your game. If, for example, a female employee is being continuously harassed on your company’s website by your users and you do nothing to prevent it, Title VII may entitle her to legal claims against you for harassment in the work place. This is true even if the harassment isn’t taking place during work—so long as it’s connected to the work she is doing for you, you may be on the hook. Even if you are a small studio that Federal law may not reach, state discrimination claims are available.
Similarly, if your game or website are targeted towards general audiences you must take COPPA and child privacy protection issues into consideration. I’ll go into why this is the case in a later article (but you can find slides here for now). If a child is harassed on your website and you haven’t taken steps to notify the parent that the child is, in fact, using your site, you may be on the hook for up to $16,000 per violation—e.g., each incident where a parent has not been contacted. Individual states also have opt out laws carrying their own penalties. The EU has its own heavily regulated online privacy law that you should also take under consideration.
And while Section 230 generally serves to protect developers and social site services that offer forums and user to user communication, there are some limitations to that immunity. The act does, however, encourage such service providers to monitor and censor objectionable content. However, the immunity does not extend to your own communications to users.
Finally, victims of harassment may employ any number of contract law theories to hold you accountable if your terms of service include a code of conduct that you in no way enforce.
So censoring content is a necessary step. No first amendment rights are being violated when you censor your forum or ban players for objectionable content in your game, and that is something they need to accept. You are not the government. Your game and your website are your company’s assets and reflect your business—you have every right and many compelling reasons to control the contents. Even if some find censorship morally reprehensible, you are not in a position to hold that belief. No one is actually entitled to an Internet Soapbox.
Ignoring It Isn’t Making it Go Away
In my past article on cyber-bullying I put an emphasis on “disengaging”, and I think that requires some re-examination. This does not mean ignoring the problem. It also does not mean doing nothing about the situation. However, when you continue to stay in the fight you increase your chances of saying something equally vitriolic and hateful in a spate of sheer anger and annoyance. We’re people. We sometimes say things we don’t mean. That’s kind of what all of this comes down to at the end of the day, isn’t it?
As a developer what you say has weight. Your fans may take their cues from you. If you thoughtlessly say something that lends itself towards discriminating or harming someone else there is a good chance that dozens of others will come at your heels to parrot and retweet that comment. So instead of using language like “disengage”, which implies turning your back on the whole thing, I’ll suggest a more responsible approach: take reasonable care not to say anything for which you will be held equally culpable. Remember that you, as a human being and a game developer, are accountable for the things you say and do.
When interacting online I generally recommend that anyone, whether they be clients, friends, or fellow gamers, ask themselves the following: “Would I be okay with my boss/wife/husband/dad/mom/kid/five year old niece seeing this?” And I make this suggestion because almost every medium we use to convey information is open to the public. Also, if you have a mom anything like mine she probably WILL see it. This includes blog posts, Facebook, Twitter, Reddit, forum posts, and your in-game communications (screenshots or it didn’t happen?). So if you’re saying something that makes you think “Mom raised me better than this,” hold that thought and hit the backspace button.
If we want to engender an environment of thoughtful and constructive communication we have to take that first step in making it possible. This is very, very hard to do, especially if you’re the target of an online harassment campaign. And if it is too difficult I don’t think you need to push yourself to say or do something about it. Immediately contact the Police if you feel threatened. Take all the measures you need to take to keep you and your family safe.
However, if you do have the courage to stand up to this, I have a few suggestions. You can find several more by check out this talk from PAX Prime 2014:
Most of all, stay kind. It may be weird hearing this from a lawyer, but it is very easy to lose sight of the goodness in humanity when it seems humanity is doing its level best to show you its ugliest face. There are many good people behind the public mob mask, and in many cases all of this can be settled with a sincere apology and a newfound mutual respect.
Internet conflicts can be daunting and difficult. As I said, sociology is hard. Being in a business where public opinion and goodwill are your stock in trade is terrifying, especially when the medium is something as individually driven as video games. But we are in this business because we love the medium. It’s important to remember that the people on the other side of the argument have an equally strong love for that medium.
So yes, at the end of the day we are on the same team.