There’s a New Sheriff in (Virtual) Town: Legal Implications of Policing in Video Games
If you have ever picked up a controller or used your computer mouse to play a video game, chances are you have encountered some sort of violent content. With over 85% of video games containing some form of violence, it is difficult to find a video game devoid of violence.[1] Despite this, most people find joy in online gaming, especially during the recent pandemic.[2] The majority of people refrain from causing harm to others in such digital settings; however, the gaming industry and other online service providers have been attempting to address issues such as violence, bullying, racism, and harassment for ages.[3] Most recently, Ubisoft, a French video game publisher notable for the Assassin Creedand Far Cry franchises, signed a “first-of-its-kind deal” to curtail cases of harassment that impact their players.[4] With the unforeseen consequences of the Metaverse in mind, Ubisoft’s deal might serve as a pioneering example for other companies in the industry to follow.
Ubisoft’s new alert system pairs a British police force with their Customer Relationship Center.[5] Specialist officers from the British police first train the customer center on harmful online interactions that they might encounter in their daily work.[6] While the center deals with simple matters such as purchasing issues and in-game questions, they are additionally tasked with handling online toxicity.[7] In more extreme harassment cases, such as those involving a threat to life or a potential serious harm, the center is able to quickly route the information to the police who decide whether or not to act.[8] About less than 0.01% of cases require police intervention, as most accounts are either temporarily banned or permanently closed.[9] Currently, there are no published examples of how Ubisoft and the police force distinguish between the type of violence that amounts to a “threat to life” and that of a “trolling” player. This type of monitoring potentially impacts player’s constitutional and contractual rights and prompts legal questions about how to regulate players internationally.
Constitutionality of Video Game Regulations
There is no debate that the creation of violent games is legal—however, players of Ubisoft’s games may wonder whether it is legal to involve the police in regulating harassing behavior online. The First Amendment of the United States Constitution protects the right to freedom of speech, including the right to create and distribute violent video games.[10] On June 27, 2011, the Supreme Court clarified this right in Brown v. Entertainment Merchants Association by invalidating a California law that prohibited the sale or rental of violent games to minors without parental permission.[11] Although the government cannot regulate the use of video games by minors, video game companies are permitted to establish their own rules and regulations for their games.[12]
Preexisting Regulation Methods in the Video Game Industry
The gaming industry notably attempted to self-regulate with the creation of the Entertainment Software Rating Board (ESRB).[13] In 1994, the Entertainment Software Association established the ESRB as a non-profit agency that focuses on rating video games based on their content.[14] While video games are not legally required to carry an ESRB rating, most retailers have policies to only carry those with ESRB ratings.[15] The ratings symbols range from “E” for Everyone to “AO” for Adults Only.[16] Additionally, the ESRB provides content descriptors that give more detail about the types of elements in the game from violence and humor to alcohol and drug use.[17] These ratings help consumers make informed decisions about which games they choose to purchase and play.[18]
The video game industry has also attempted to regulate by establishing industry wide standards. In addition to establishing the rating systems, the ESRB established an Advertising Review Council (ARC) that is “responsible for the implementation, administration, and enforcement of advertising guidelines adopted by the video game industry.”[19] Video game publishers are subject to corrective actions and fines if they violate ARC’s Advertising Principles and Guidelines in their marketing material and advertisements.[20] Other organizations such as the International Game Developers Association (IGDA) also work to promote ethical behavior in the industry.[21] As a non-profit organization, the IGDA advocates for changes that affect professional game developers by addressing issues of violence in video games.[22]
Developers have made efforts to regulate and curtail violence within the games themselves through reporting systems similar to Ubisoft’s alert system. Some mechanisms include reporting players through in-game tools, contacting customer support and attaching evidence of harassing behavior, automatic flagging of insulting words, and monitoring chat logs.[23] Ironically, games mechanisms might even involve “virtual” law enforcement, where players are penalized for breaking in-game laws.[24] Penalties that violating players face vary from chat restrictions, to placing players in a separate gaming zone, to banning players.[25] While these reporting systems are well-intended, many users complain that they lack clarity and are inconsistent in preventing violating behavior.[26] Thus, it is important for companies to implement a legal design that effectively monitors harassing behavior.
Contractual Issues with Ubisoft’s Alert System
Ubisoft’s alert system adds an additional method of regulation onto the existing regulations that exist in the video game industry. The addition of a police task force in Ubisoft’s system seems like a bright solution, seeing as reporting systems have a history in reducing verbal abuse.[27] But beyond setting rules and regulations for their video games, Ubisoft should obtain consent from their users to permit monitoring and police involvement. More specifically, it would be helpful if users were made aware of the type of actions that rise to the level of “life-threatening.”
As of March 2023, Ubisoft’s current Terms of Use outlines their “Rules of Conduct” for players to abide to and includes a long list of types of behaviors that are not welcoming to the gaming community; however, this does not specifically describe what type of behavior rises to the level of “extreme.”[28] Upon closer glance, Ubisoft’s Terms of Use only states that “disciplinary action is dependent upon the severity . . . of the offense” and that “the disciplinary actions should not be considered exhaustive,” but makes no mention to the police task force’s involvement.[29] Ubisoft published a Code of Conduct and an article justifying their disciplinary actions against Ubisoft account holders; however, each document only contains a few examples and general descriptions about illegal and toxic behavior.[30] Without considering whether these terms would be binding, clearer contractual description will be helpful to players to better understand how Ubisoft’s new reporting system will be enforced and could help Ubisoft in enforcing criminal charges against players who violate their contracts.
International Regulation of Ubisoft’s Alert System
With Ubisoft’s police system in place, it is likely that concerns will arise regarding how a local police task force can regulate an international phenomenon. Within the online community, players have the ability to remain anonymous and shield themselves from physical regulation, which is a cause for concern. Currently, except through use of technological medians, there is no clear way for police to regulate video game behavior internationally.
With the introduction of the Metaverse and other “virtual world” type games, the lack of regulation and reporting has allowed anonymous criminals to foster an environment that is susceptible to criminal activity.[31] For example, many “money-launderers” have flocked to Fortnite, using stolen money to make microtransactions in game, and selling accounts, skins and other in-game content.[32] This violates Epic Games’ policies, which prohibits the “transfer, [sale], gift, exchange, trade, lease, sublicense or rent[al of] Game Currency or Content except within the Software.”[33] Since different nations have different definitions relating to virtual currency, it will be difficult to impose a penalty.[34] Additionally, there is no algorithm to distinguish between strange behavior and casual players in video games.[35] The difficulty of international regulation can further be attributed to the difficulty of balancing protection of economic mischief and censorship.[36]
As of March 2023, there is no information on how Ubisoft plans to internationally regulate with their police task force or whether they plan to expand their police task force locally to implement physical regulation. Luckily, very cases require police intervention and most likely, Ubisoft will use one of their many other regulatory methods until they can find a way track extreme cases of harassment without violating a person’s privacy.[37]
Conclusion
Ultimately, the issue of violence and policing in video games raises many legal and ethical questions. Ubisoft’s police alert system is a step in the right direction towards combatting online toxicity but needs more clarity. Luckily, it does not seem that Ubisoft will stop there, as Ubisoft and Riot Games are working together on a research project called “Zero Harm in Comms” to eliminate toxic behavior in voice communications.[38] While the First Amendment protects the rights of video game developers to create violent content, it is equally important for players and developers to monitor the impact that this content has on society and players and to push for regulators to address the criminal activities that happen in online video games.
Figure 1: Section 3.1 of Ubisoft’s Terms of Use[39]
[1] Am. Psych. Ass’n, APA Resolution on Violent Video Games: February 2020 Revision to the 2015 Resolution 1 (2020), https://www.apa.org/about/policy/resolution-violent-video-games.pdf.
[2] See Mike Snider, Two-thirds of Americans, 227 Million, Play Video Games. For Many Games Were an Escape, Stress Relief in Pandemic, USA Today (July 13, 2021, 11:30 AM), https://www.usatoday.com/story/tech/gaming/2021/07/13/video-games-2021-covid-19-pandemic/7938713002/.
[3] A Timeline of Video Game Controversies, Nat’l Coal. Against Censorship,
https://ncac.org/resource/a-timeline-of-video-game-controversies (last visited Mar. 9, 2023).
[4] Steffan Powell, Toxic Gaming Tackled by Ubisoft’s Unique Police Alert System, BBC News (Feb. 8, 2023), https://www.bbc.com/news/entertainment-arts-64476762.
[5] Id. While other companies may have similar customer care systems in place, Ubisoft’s system features a deal that directly involves local law enforcement, such as the local Northumbria police force.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 786 (2011).
[11] Id. (holding that it is unconstitutional to prohibit the sale of violent games to minors).
[12] See Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 383 (2000) (describing property rights attributed to owners, including the right to control); see also What Are Intellectual Property Rights?, World Trade Org., https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm (last visited Mar. 9, 2023) (allotting an intellectual property owner the power to use and control their creations for a period of time).
[13] See About ESRB, Ent. Software Rating Bd., https://www.esrb.org/about/ (last visited Mar. 16, 2023).
[14] Laura Black, Violence Is Never the Answer, or Is It? Constitutionality of California’s Violent Video Game Regulation, 5 J. Bus. Entrepreneurship & L. 87, 93 (2011).
[15] Id.
[16] Ratings Guide, Ent. Software Rating Bd., https://www.esrb.org/ratings-guide/ (last visited Mar. 8, 2023).
[17] Id.
[18] Id.
[19] Advertising Principles and Guidelines, Ent. Software Rating Bd., https://www.esrb.org/ratings/principles-guidelines/ (last visited Mar. 8, 2023).
[20] Id.
[21] See About Us, IGDA, https://igda.org/about-us/ (last visited Mar. 16, 2023).
[22] See Advocacy, IGDA, https://igda.org/about-us/advocacy/ (last visited Mar. 9, 2023). The IGDA also notably assisted in the filing of the amicus brief for Brown v. Entertainment Merchants Association to support First Amendment rights for video games. Id.
[23] See Skittle Sniper, Player Reporting Guide and FAQ, Riot Games, https://support-leagueoflegends.riotgames.com/hc/en-us/articles/201752884 (last visited Mar. 9, 2023); see also Reporting a Player in Ubisoft Games, Ubisoft Ent., https://www.ubisoft.com/en-ca/help/player-safety/article/reporting-a-player-in-ubisoft-games/000096919 (last visited Mar. 9, 2023); see also Emma Roth, Valorant Will Start Monitoring Your Voice Chats Starting July 13th, The Verge (June 26, 2022, 2:05 PM), https://www.theverge.com/2022/6/26/23184009/valorant-monitor-voice-chats-july-13th-riot-games.
[24] See Definition of Grand Theft Auto, Britannica, https://www.britannica.com/topic/Grand-Theft-Auto-video-game (last visited Mar. 9, 2023). Although the entire premise of the Grand Theft Auto series is about committing crimes and avoiding the police, the law enforcement in the Grand Theft Auto games can apprehend players for committing crimes.
[25] Nora Al Haider, Trading Places: Legal Design in Reporting Systems of Online Multiplayer Video Games, Medium (Feb. 5, 2019), https://medium.com/@ahnora/trading-places-legal-design-in-reporting-systems-of-online-multiplayer-video-games-386c1b321745.
[26] Id.; see also Disruption and Harms in Online Gaming Resource: Penalty and Reporting Systems, ADL (Dec. 3, 2020), https://www.adl.org/resources/report/disruption-and-harms-online-gaming-resource-penalty-and-reporting-systems.
[27] See Alex Newhouse, League of Legends Reporting System Has Reduced Verbal Abuse to Only 2% of Matches, Gamespot (July 9, 2015, 4:07 AM), https://www.gamespot.com/articles/league-of-legends-reporting-system-has-reduced-ver/1100-6428733/; see also Jay Castello, Foul Play: Tackling Toxicity and Abuse in Online Video Games, The Guardian (Aug. 17, 2018), https://www.theguardian.com/games/2018/aug/17/tackling-toxicity-abuse-in-online-video-games-overwatch-rainbow-seige (describing examples of other games that have reduced abuse due to reporting systems).
[28] Ubisoft Terms of Use, Ubisoft Ent., https://legal.ubi.com/termsofuse/en-US (last updated May 12, 2020).
[29] Id.; see also Figure 1.
[30] Code of Conduct: The Way We Play, Ubisoft Ent., https://www.ubisoft.com/en-us/help/player-safety/article/code-of-conduct-the-way-we-play/000095037 (last visited Mar. 9, 2023); see also Reasons for Disciplinary Actions Against Ubisoft Accounts, Ubisoft Ent., https://www.ubisoft.com/en-us/help/account/article/reasons-for-disciplinary-actions-against-ubisoft-accounts/000066787 (last visited Mar. 9, 2023).
[31] Stefano Siggia, Online Video Games: Regulatory Overview, ACAMS Today (Nov. 20, 2019), https://www.acamstoday.org/online-video-games-regulatory-overview/.
[32] Id.
[33] Fortnite End User License Agreement, Epic Games, https://www.epicgames.com/fortnite/en-US/eula (last visited Mar. 9, 2023).
[34] Siggia, supra note 31.
[35] Steven Messner, How Microtransactions and In-Game Currencies Can Be Used to Launder Money, PC Gamer (Apr. 13, 2018), https://www.pcgamer.com/how-microtransactions-and-in-game-currencies-can-be-used-to-launder-money/.
[36] Niel Clark, Video Game Regulation: Where We Are Now, Game Dev. (Jan. 20, 2009), https://www.gamedeveloper.com/business/video-game-regulation-where-we-are-now.
[37] As mentioned earlier, Ubisoft and many other developers regulate most of issues of violence in game through their in-game tools such as banning accounts, flagging words, monitoring chat logs, etc.
[38] Akshay Patel, Riot and Ubisoft Are Teaming Up to Curb Toxicity in Online Games, The Gamer (Nov. 16, 2022), https://www.thegamer.com/riot-ubisoft-teaming-curb-toxicity/.
[39] Screenshot of Ubisoft’s Terms of Use, in Ubisoft Terms of Use, Ubisoft Ent., https://legal.ubi.com/termsofuse/en-US (last updated May 12, 2020).