Adam Whyte – Red Monkey Collective – Censorship: a lawyer’s perspective

Toxicity, bad language, homophobia, racism and a plethora of other issues remain prevalent in the world of gaming and esports. Just this week, renowned streamer PewDiePie used the “n-word” whilst being watched by thousands. Rightly so, he’s received extreme criticism across a multitude of platforms. Not only do streamers have responsibility, but in-game chat whether typed or vocal can be a cesspit of vitriol at the best of times. 

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Red Monkey Collective, a talent and brand management agency have contributed two guest pieces surrounding the issue of censorship in gaming and esports.

The first of the two part series came from Dahlia Penna, Esports Associate and more importantly, D.Va main. She talked extensively about her experience with toxicity as a female gamer as well as potential solutions. 

The second part of the series comes from Adam WhyteHead of Esports. Adam has a legal background and discusses the censorship issue from a legal perspective. 

Please note, the full bibliography for attributed sources for both pieces is included at the end of this piece.


There is a careful balancing act to be formed within the games industry when it comes to censorship; the publisher’s right to prohibit use of their product, the user’s right to freedom of expression, and the communities’ right to be protected from offense.

There are several bodies of law that enshrine the freedom of expression/ speech. The 1st Amendment of the United States Constitution is oft referred to when one is discuss the freedom of speech and expression. Likewise, in Europe: The European Convention on Human Rights (1950), include Article 10, entitles all citizens of the ECHR to free expression.

However, does an individual does have the right to be protected from harm from those around them? And what defines harm? John Stewart Mill states in his book On Liberty that the harm principles holds that the actions of individuals should only be limited to prevent harm to other individuals.

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”  (Mill, 1869)

Mill distinguished between 4 types of acts that could be regulated by the government. The government could potentially restrict acts which:

  1. Cause harm to others
  2. Cause harm to self
  3. Cause offense to others
  4. Are morally offensive.

Mill’s theory that the state should only prohibit individuals from causing harm to another is inherently utilitarian. I.e. Causing harm, limits another freedom and their ability to maximize their utility to the community. In the context of gaming, limiting one’s free speech might inhibit their optimal team performance and/ or capacity to effectively transmit ideas within their team.

“In other words, abiding by the harm principle is desirable because it promotes what Mill calls the “free development of individuality” or the development of our humanity.”  (Heydt, n.d.)

Mill would definitely contest that “toxic” behaviour online is merely ‘causing offense’ rather than harm and, as such, should be allowed. Moreover, the legal frameworks which exist globally differ so wildly, and as such, it’s difficult to know whose duty it is to regulate “in-game content.”

It’s understandable that few people/no one wants to hear horrible things. However, it begs the question: is it up to the user (who has the option to mute or block people) or up to the publisher (who can ban players) to regulate their online communities.

Indeed, Evelyn Beatrice Hall (and not Voltaire) famously wrote in The Friends of Voltaire:

I disapprove of what you say, but I will defend to the death your right to say it” (Hall, 1906)

However, Voltaire was presumably ruminating and philosophising about the merits of free speech in an inherently restricted society. He certainly wasn’t a raging gamer who just got no-scoped by a Widow or was half a second from bomb defuse. Nor was he being trolled by a 9 year old.

Mill wanted to distinguish between harm and having our feelings adversely affected (Lacewing, n.d.). Perhaps, a wider moral (rather than legal) argument here, is if the publishers really need to or should care about the feelings of their players, or if we should just get on with it.

The question of younger players is also something that needs to be addressed: do game developers and publishers have a duty of care to underage players? See Riot’s League of Legends where, legally, everything and anything goes. But, this had made for a notoriously toxic community known for its lack of regulation. (LeJacq, 2015)

Online speech regulation is a big topic in Germany at the moment. In July of this year, German parliament approved a plan to fine social media networks up to 50m euros if they fail to promptly remove hateful posts, in spite of concerns the law could limit free expression (McGoogan, 2017).Is it only a matter of time before other countries adopt this attitude? It seems that it is only a matter of time before this approach spills into other systems and communities, such as gaming and esports?

“It is interesting to think that a governmental body with limited jurisdictional authority (Finnish laws operate only in Finland, etc.) may one day mandate that game publishers monitor and police their content or be subject to fines”

One would assume we are, collectively and as societies, moving towards a realm of more free speech, less offence taken when the heretics publish misinformation or slander. However, perhaps we haven’t fully shed the shackles of a paternalistic society. Moreover, I’m certainly not fit to be the judge of what is fair and just or right and wrong.

Many countries and peoples have decided that the state is fit to restrict civil liberties when principles such as security and morality are affected. In such countries, the government may mandate restriction on the freedom of speech in order to protect public policy, this is evident in particularly important in autocratic and protective countries such as Switzerland, Sweden, Germany & Denmark?

“So, yes – there is certainly a careful balancing act when it comes to freedom of expression, the right to a safe community, and publisher’s right to police their own content channels.”

It’s interesting to look at the world of football with regard to government’s mandating particular behaviour from content organisers. Governments and regulatory authorities often oblige event organisers to ensure that their fans don’t behave in a certain fashion (Celtic vs. Rangers springs to mind). It is interesting to think that a governmental body with limited jurisdictional authority (Finnish laws operate only in Finland, etc.) may one day mandate that game publishers monitor and police their content or be subject to fines. Particularly when minors have access to such potentially vociferous and volatile content, perhaps someone does need to step in. What is ‘legally interesting’ is, uponst whom is this responsibility bestowed? Game publisher, console operator, government, the community, or someone else?

People are constantly posting about how disappointed they are that publishers aren’t banning people for ‘inappropriate language’. Many questions can arise from statements like this, such as: who defines what inappropriate language is? Who should decide when language has overstepped the mark? Is language used in ‘private parties’ to be monitored or just language which is public? These posts are limited to 140 characters and whilst being both populist and sensational, they are often incredibly vague and offer no real value to how this situation should be properly addressed.

So, yes – there is certainly a careful balancing act when it comes to freedom of expression, the right to a safe community, and publisher’s right to police their own content channels. However, simply banning the heretics probably doesn’t reflect the true beauty of gaming & esports, that it is community driven.  Moreover, it presumes that the community itself isn’t able to properly regulate this with user-lead features such as child-mode for chat channels, muting squeakers & those who choose to act like idiots, and downvoting someone until they are unable to match with anyone based on their poor reputation.

Concluding, in an ideal world, we wouldn’t have people saying mean things to each other to evoke emotive and primal responses. However, we do, and this hurts the feelings of most people who are trying to enjoy a peaceful and meaningful existence. As such, perhaps we can extend Mill’s principle of harm to words that cause pain. However, it is dangerous to allow the offended the arbiter of what is fair and offensive. ((YouTube, 2017)

Therefore, perhaps rather than attempting to solve this complex matter with legal instruments that might not even exist yet (cross jurisdictional, digital prohibitions on certain mediums of language), we should let the community decide what is true, fair and just, and do our best to game with the nice folks.

References:

Calleja, G. (2010). Digital Games and Escapism. Games and Culture, 5(4), pp.335-353.

Dunckley, V. (2015). Reset your child’s brain. New World Library.

Hall, Evelyn Beatrice (1 January 1906). “The friends of Voltaire;”. London

Heydt, C. (n.d.). Mill, John Stuart | Internet Encyclopedia of Philosophy. [online] Iep.utm.edu. Available at: http://www.iep.utm.edu/milljs/#H1

Holfeld, B. and Sukhawathanakul, P. (2017). Associations Between Internet Attachment, Cyber Victimization, and Internalizing Symptoms Among Adolescents. Cyberpsychology, Behavior, and Social Networking, 20(2), pp.91-96.

Lacewing, (2017). [online] Available at: http://documents.routledge-interactive.s3.amazonaws.com/9781138793934/A2/Mill/MillHarmOffence.pdf [Accessed 9 Aug. 2017].

LeJacq, Y. (2015). How League Of Legends Enables Toxicity. [online] Kotaku. Available at: http://kotaku.com/how-league-of-legends-enables-toxicity-1693572469 [Accessed 9 Aug. 2017].

Lin, H., Sun, C.-T., & Tinn, H.-H. (2003). Exploring clan culture: social enclaves and cooperation in online games. Proceedings of DiGRA (pp. 288-299). Utrecht: University of Utrecht.

Maher, B. (2016). Can a video game company tame toxic behaviour?. Nature, 531(7596), pp.568-571.

McGoogan, C. (2017). Germany to fine Facebook and YouTube €50m if they fail to delete hate speech. The Guardian. [online] Available at: http://www.telegraph.co.uk/technology/2017/06/30/germany-fine-facebook-youtube-50m-fail-delete-hate-speech/ [Accessed 9 Aug. 2017].

Mill, John Stuart. On Liberty. London: Longman, Roberts & Green, 1869; Bartleby.com, 1999

YouTube. (2017). Christopher Hitchens and Stephen Fry – Blasphemy [2006]. [online]