Let me start off by saying the game industry is good. It’s full of good people doing good things. I’m fortunate enough to live and work within a community that offers an immense amount of inclusion and respect. I’ve somehow managed to surround myself with people that personify the best aspects of our industry. I’m a woman making, writing about, and endeavoring to work in games – which can sometimes, in less supportive places, be a complicated endeavor. However, I’ve found endless support.
In the past couple weeks, I’ve seen a lot of the bad side of the game industry that indicates we should be improving. Individuals that make, play, write about, and involve themselves in games became embroiled in a lot of online nastiness. It stemmed from fraud, ethics, misogyny, or the sense that none of these should be present. If we’re going to discuss these issues, we should do so in a less violent or hostile way, and legal recourse is one way to handle these issues and reign in negative behaviors.
I’m not a lawyer, and none of the following is advice. If you have concerns, you should talk to a lawyer licensed to practice in your area. Beyond that, a topic this sensitive is going to be colored by my perspective and experience. I will do my best to keep the information accurate and not to make moral judgments, but in some cases my bias will show.
#GamerGate has been an online movement with no single basis, perhaps related to feminism, misogyny, or journalistic integrity. The issue may have begun with a blog post that mentioned a sexual relationship between a developer and a journalist, which the author implied resulted in positive press coverage. As a result, some assumed that these kinds of relationships were not rare in the games community. Some responded that these relationships were a breach of journalistic integrity. Others felt that the alleged sexual history of a female developer was not a valid source of conversation. Some started making threats, doxxing, and responding to critiques with obscenity. Much of this negative activity was directed at women, and those that supported them, in the industry, leading many to believe that it was misogynistic in origin. Even after the FBI became involved those concerned about journalistic integrity and those suffering from misogynistic attacks were left dealing with fall out.
An initial issue is journalistic integrity. There is no legal cause of action for breach of journalism ethics. Recourse in that space is left to the market. There may be some space for claims of fraud, which is “the intentional use of deceit, trickery or some dishonest means to deprive another person of their property or legal right.” But, given what I can understand of the claims against game journalists – that developers were engaged in inappropriate relationships with developers – fraud does not seem applicable in this case.
Defamation is a civil area of law that offers remedies when your reputation is harmed by someone’s words. Libel occurs when these words are written or published. To prove defamation, a plaintiff must prove that a statement that is false and injurious is published somewhere nonprivileged. For any statements made by a journalist to be considered defamation, they must be false facts, not unfavorable opinions. The journalist must know that the information is false and not care or try to determine its validity. If the statement is about a public figure, the falsity must be intentional. Defamation claims are not limited to journalistism. Anyone who published a false statement that meets these criteria can find him or herself in civil court.
The bulk of the issue is whether all the harassing behavior online is illegal, and, by extension, who is at risk of legal repercussion. Assault, within the Common Law, is “an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.” Assault does not require that a harmful or offensive contact be made, but rather only requires an intentional action that would cause a rational person to fear imminent harmful or offensive contact. Some of the language online was threatening to a rational person, but much of it also came from individuals that posed no imminent threat.
Laws regarding cybercrimes (e.g. cyberbullying, cyberharassment, cyberstalking) usually vary by state but occasionally fall under federal law. It is a federal crime, punishable by up to five years in prison and a fine of up to $250,000, to transmit any communication across state or national lines containing a threat of injury. Federal law also criminalizes certain forms of cyberstalking as misdemeanors. It is a federal crime, punishable by up to two years in prison, to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number, so long as the caller remains anonymous. The Interstate Stalking Act makes it a crime for a person to travel across state lines with the intent to injure or harass another, if the action creates a serious risk of injury or harm to that person or their family.
Most states have individual laws which deal directly with threats made online. These laws vary wildly amongst the states, but almost all require that the person making threats intends to harass the victim. Some specifically criminalize messages that are obscene, sexual, or target the victim’s family. Some include distribution of photos as acts of harassment. Some are felonies with mandatory jail time, while others are misdemeanors. Some states have additional laws to protect minors from cyberbullying. Predominantly, each state applies their laws differently.
Those making threatening comments are sometimes protected by claims of free speech. However, First Amendment rights do not extend to libel, slander, obscenity, true threats, or speech that incites imminent violence or lawbreaking. With such a wide range of criminal statutes, language on the internet should be used carefully. Hacking or collecting information without authorized access is also often criminal. On the other hand, creating a parody account on social media is not criminal, but does often violate terms of service. Hosting or promoting harassing content may land a website in hot water, usually through loss of readership or civil legal action, but the laws have not been created to make such behavior a clear criminal offense.
It should be obvious that anyone who feels unsafe or threatened should reach out to the authorities. Even where there is no immediate cause of action, the report will create a record of behaviors and may influence lawmakers to take new situations into account. Knowledge of local laws can be empowering in stressful situations. In an ideal world, our community wouldn’t need to rely on criminal statutes to create a safe environment.