Game Developer Harassment: Can You Sue? Is It Worth It?

faceless figure in front of a target to represent game developer harassment
Online harassment of developers is at an all-time high. Can they sue their detractors? Is it worth it?

This summer, Polygon published an engrossing article by Brian Crecente about the escalation of online game developer harassment. An in-depth exploration on the topic of developer harassment, Crecente interviewed industry folks who’ve been ridiculed and threatened over contentious issues in the fandom. According to the article, the situation is now so grim that the International Game Developers Association is considering the establishment of a developer harassment support group.

In the article, Adam Orth, Stephen Toulouse and David Vanderhaar shared their personal developer harassment tales. In April, Orth, a former Microsoft employee, had the unpleasant task of tweeting about Microsoft Studios’ “always-online” consoles. The responsibility resulted in a backlog of death threats on his social media accounts. Toulouse, who left his position as Xbox Live’s head of policy and enforcement two years ago, said he still gets messages like, “I am going to kill you and I’m going to find you and destroy you.” Once, he was even swatted (prank callers sent a swat team to his house), but the police didn’t do much to punish the perpetrators. Like his colleagues, Vanderhaar, who announced a few minor changes on Call of Duty: Black Ops 2 on Twitter, was also pelted with violent threats.

Why Is Developer Harassment On The Rise?

Co-director of the Cyberbullying Research Center, Sameer Hinduja, explained, “when individuals are online they are sort of separated from their conscience and from social conventions and morals and norms and even the law, and they feel a little bit more free to say what they want to say. It’s almost like we’re reverting to our primitive tendencies where we didn’t know rules of social decorum and so forth.”

Simply put: increased connectedness leads to an increase in developer harassment. Back in the day, when Atari ruled, you could complain to your neighbor Bobby about level three of Adventure, but Bobby was most probably your sphere of influence. Because unless you pulled out a paper and pen (or your Brother’s word-processor), wrote your screed long-hand (because txt-spk didn’t exist back then), looked up the address (which would probably require a trip to the library to access nationwide phone books), got a stamp and mailed it, the chances of complaining directly to a developer were slim.

Increased connectedness leads to an increase in developer harassment.

But these days, a scathing diatribe is a finger swipe away. And since most fans don’t know the targets of their rage, the appropriate behavior Rubicon is often crossed. In some regards, developers aren’t seen by fans as actual people (especially in the middle of a fit), but as the game itself. The phenomenon is almost akin to cursing out your lawn mower when it’s not cooperating.

When asked about the rise of developer harassment, Nathan Fisk, lecturer at Rensselaer Polytechnic Institute, opined, “I think fans harass developers for a range of reasons, but again, it is always about power and position. Game developers are in many ways becoming public figures as they openly interact with gaming communities and social networking technologies have made making contact a simple process.” Fisk also believes gamers are dealing with some legitimate “industry trends which are genuinely manipulative and restrictive,” but he cautions it is not an excuse.

The phenomenon is almost akin to cursing out your lawn mower when it’s not cooperating.

Can A Game or Software Developer Sue A Fan or Critic?

video-game-lawyerAll of this talk about developer harassment got us thinking: Should a developer take legal action against trash-talking fans? Does the reward outweigh the risk? Does a game or software developer even have a decent chance at winning a lawsuit against an overzealous, threatening fan- boy or girl? What charges could the victimized developer claim if he or she decided to sue? Do developers have a legal recourse if the harassment goes overboard? In a word, yes – because even free speech has its limits.

Threats of Death or Bodily Harm – It’s never legally acceptable to threaten death or bodily harm. Telling a developer that you are going to find them and kill them is technically against the law. All a developer has to do is walk into their local police station in the morning, and the FBI could be involved by the afternoon.

Defamation – If a false statement of fact is made in a screed about a developer, that developer, technically, could sue for libel. In order for the developer to win, however, he or she would have to prove that the statement caused material harm, that the defendant acted with reckless disregard for the truth and that more than one person saw the statement in question. In other words, the lie must be published on a public forum, like Twitter, and it must cause material harm for the developer.

Infliction of Emotional Distress – If you’re hounding a developer repeatedly, with vitriol, that developer could go after you for either intentional infliction of emotional distress or negligent infliction of emotional distress. Commonly known as the tort of outrage, emotional distress actions can be hard to win, but blatant threats of bodily harm or death often prevail.

Criminal Stalking Charges – Another legal option available to beleaguered developers is filing criminal stalking charges, but only if the perpetrator is constantly on the hunt.

Is Suing the Fandom For Developer Harassment Worth It?

Should I sue for defamation?
Should developers sue for defamation?

OK, so we’ve established that developers get flamed a lot online, and we’ve established that if a developer chooses, he or she can take legal action. So now we have to ask: Is suing over online smack talk worth it?

In the Polygon article, Jennifer Helper, a former BioWare narrative designer admitted that harassment can be tough to handle, especially the death threats against her kids over the storyline of Dragon Age II. However, Helper was quick to also point out the positive flip side: copious amounts of support she gets from fans. So ask yourself: is it worth the possible PR hit your reputation would take in the gaming world if you went legal over a handful of over-the-top detractors?

A Game Developer Harassment Support Group May Be On The Way

Oftentimes the emotional impact of stalking or harassment is tough to handle alone. As such, the International Game Developers Association is looking to establish a support group for victimized parties. Kate Edwards, a spokesperson for the group explained, “It’s gotten onto our radar. We’re getting to a point where we’re thinking, “Yeah, it’s becoming something we’re going to need to talk about. It might be more explicit support group or mechanism to help people who are dealing with this sort of thing.”

Do you have any pressing legal questions about online developer harassment? Set up a confidential consultation with Kelly Warner Law today.

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