How the Loss of Section 230 Could Affect the Video Game Industry
Section 230 of the 1996 Communications Decency Act (“Section 230”), the landmark provision that shields companies from liability for user-generated content, has been the subject of much debate recently.[1] It is no secret that many would like to see this piece of legislation done away with. In the last few years, there have been calls for repeal from both sides of the aisle.[2] Additionally, several cases regarding Section 230 are headed to the Supreme Court.[3]
There has been a lot of discussion surrounding the Section 230 controversy. However, it is most often talked about in the context of social media companies.[4] While this is a valid consideration, the discourse tends to leave out how the loss of Section 230 could affect other internet-focused activities.
This post sets out to examine the implications this loss would have on the multi-billion-dollar video game industry.[5] First, I will briefly explain Section 230 and how it implicates video games. Next, I will outline the wide interest in its repeal. Then I will analyze how losing Section 230 could affect the video game industry, followed by a discussion of my own perspective.
What Is Section 230, and What Does It Have to Do with the Video Game Industry?
Section 230 states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[6] This essentially immunizes tech companies from liability for user-generated content on their platforms (with a few exceptions).[7] For example, if someone were to Tweet defamatory content, the individual user could be sued, but Twitter would not be liable.
While Section 230 is often talked about in the context of social media, it implicates video games, as well. The definition of “interactive computer service” given by the statute may seem technical and somewhat vague, but it is clear that video game companies, including publishers and developers, are shielded by Section 230.[8] Courts have interpreted the meaning of “interactive computer services” relatively broadly.[9]
As it stands now, Section 230 affects gaming in many ways. Many multiplayer games, including massively multiplayer online games (“MMOs”), rely heavily on in-game communications via voice chats or text chats. Under Section 230, harmful acts between players may create civil liability for an individual but not for the company hosting the game.[10]
It also protects publishers, like in the recent case of Coffee v. Google, LLC.[11] There, the plaintiff brought a claim against Google regarding loot boxes in games published on the Google Play store. The court found that “Google could not be held liable in this case for merely allowing video game developers to provide apps to users through the Google Play store.”[12]
Additionally, the gaming community and industry extend beyond just the games themselves. Some social media is tied very closely to the video game community. Take Twitch, a live-streaming platform with a focus on gaming, for example.[13] The well-established Section 230 immunity for social media companies ensures that companies like Twitch are almost never held liable for the content of user-generated broadcasts they host.[14]
Interest in Eliminating Section 230 Across Every Branch of Government
Every branch of government has shown interest in getting rid of or gutting Section 230. Calls for its repeal have come from across the U.S. political spectrum, and the Supreme Court is set to hear several cases that may decide its fate. While their reasonings may vary, it would seem a disdain for Section 230 is something many officials can agree on.[15]
Both Democrats and Republicans have voiced their discontent with Section 230.[16] President Biden himself has called for the removal of Section 230 in recent years.[17] This seems to have been part of a push by his administration to reign in big tech.
Biden is not the only recent White House resident to criticize the provision. Former president Donald Trump has also called for the repeal of Section 230.[18] He has even stalled crucial legislation in an effort to make Congress repeal it.[19]
It appears that Section 230 will not find a safe haven in the judiciary either. Lower courts have been fairly consistent in their rulings regarding the provision.[20] However, the Supreme Court is set to hear several cases that may drastically change (and effectively eliminate) Section 230 and its ability to shield tech companies from liability.[21]
The two cases set to be heard by the Supreme Court are Gonzales v. Google and Twitter v. Taamneh.[22] In Gonzales, the question revolves around the possibility of immunity disappearing if a platform amplifies problematic content to its users.[23] In the Taamneh case, the issue is whether a company can be held responsible for “aiding and abetting” terrorism, even if it takes measures to remove most pro-terrorism content from its platform.[24] Additionally, there is a circuit split that implicates Section 230 that could also head to the Supreme Court.[25]
The outcome of these cases will determine the future of Section 230. The unique conditions under which the cases were taken up have caused some to speculate that the Court has at least some interest in weakening Section 230.[26] Justice Clarence Thomas has already expressed his opinion in individual concurrences, in which he raised concerns about the law’s extensive protections and urged his fellow justices to examine them more closely.[27]
It is worth noting that not all of Section 230’s detractors call for its eradication.[28] Some have called for a more moderate approach and suggested amending it. Additionally, it is possible that the upcoming Supreme Court decisions could simply erode or weaken Section 230 instead of outright eliminating it. The possibilities that could result from half-measures like these are numerous and outside of the scope of this post.
What Could Happen to the Video Game Industry if We Did Lose Section 230?
Section 230 serves as a key protector for many entities in the video game industry. However, there is a significant amount of hostility towards it.[29] So, what might happen to the industry if Section 230 were to be eliminated?
The removal or significant weakening of Section 230 immunity would open companies to enormous liability.[30] Without it, they could be dragged into court for every problematic piece of user-generated content on their platform.[31] For multiplayer games, this could include things like harassment or true threats between players. For live-streaming platforms like Twitch, it could mean liability for defamatory remarks made by streamers. In the case of publishers like Google, if brought into court again for the practices of game developers whose apps they host, they may be liable.
Additionally, even if Section 230 is only shrunk, it could have huge implications for the industry. For example, if the court were to side with the plaintiffs in Gonzalez and restrict immunity when platforms amplify problematic content.[32] Many platforms, publishers, and games use algorithms to filter and present content to users. If the companies could be caught up in litigation every time their complex algorithm behaves unpredictably, it may be unworkable.[33]
It is also possible that video game companies could find themselves in a “catch-22” of sorts. With concerns about free speech, there may be laws passed that restrict what companies can moderate.[34] When faced with both restrictions on what must be removed and what must not be removed, companies may be unclear on how to proceed.
Realistically, these video game companies may opt to remove features that allow for user-generated content rather than face the risk of liability. In Sanders v. Acclaim Entertainment, a Colorado court pondered how a company could function with “overly burdensome and impractical obligations” similar to these.[35] The court concluded that the only way to comply would be to stop making the games altogether.[36]
Without Section 230, the industry would change as we know it. Developers may remove or severely restrict multiplayer elements that allow for communication between players. Publishers like Google, Apple, or PlayStation may have to completely revamp the way they run their storefronts, resulting in far less access to more niche titles. As for platforms that host live content like Twitch, it is unclear how they could continue to exist in their current form.
Conclusion
While I strongly support the regulation of companies in the video game space, I believe repealing or striking down Section 230 could open the door to overly broad restrictions.[37] Due to the (relatively instant) nature of online interactions, companies may be over-inclusive when moderating, even if Section 230 is only weakened.[38] The fear of broad liability could lead companies to pull many online features altogether. It is possible that online interactions in video games, at least in their current form, could cease to exist.
Interactivity is what sets video games apart from other art forms. Over the years, that interactivity has evolved to allow people from all over the world to connect with one another. People take on challenges together, compete against one another, express themselves, build communities, and share their creations with others. The loss of Section 230 could put all this at risk.
Section 230 has its issues, and perhaps it is time for a change. However, the full removal of it by Congress or gutting of it by the Supreme Court is not the answer. Amending the statute may be a good idea, but it is important for legislators to keep in mind the broad implications a change like this would make.
Footnotes
