Recent research on the effect of computer games on the behaviour of children revealed a causal link between violent games and increased aggressive behaviour. Other injuries associated with the prolonged use of computers have also been established. So who is responsible and what are the legal issues involved?

With an ever-increasing number of games having violence as the major feature, there are fears that this may result in the player becoming more aggressive. ‘Hooligans – Storm over Europe’ (rated 18), is a game that was recently released and gives players the chance to be a football hooligan in Europe, despite calls for it to be banned. The game depicts gruesome scenes of soccer thugs fighting one another in pubs and terraces armed with broken bottles, knives and other weapons. Can all of this lead to the user replicating the acts of violence depicted in these games? Research is only beginning to give us a picture of what these effects might be. Middlesex University has carried out research and concluded that violent computer games may be directly responsible for aggressive behaviour. The University carried out its research on the behaviour of 204 pupils aged between 12 and 14 at a London school. They discovered that the longer children played violent computer games, the more aggressive their behaviour became. They concluded that ‘there is a growing body of evidence to suggest that there is a link between playing games and aggression.’

DO GAMES POSE A RISK OF INJURY?

As a result of a report published in the February 2002 issue of the British Medical Journal, doctors are calling for vibrating computer games to carry health warnings after a teenager developed a painful condition known as hand-arm vibration syndrome. The report referred to a case at the Department of Paediatric Rheumatology at Liverpool’s Alderhay Hospital of a 15 year old boy who spent 7 hours a day playing computer games and who particularly enjoyed those using the vibration mode on his controller. Doctors said that the symptoms of the boy were typical of the hand-arm vibration syndrome seen in industrial settings where people repeatedly used tools such as chainsaws and pneumatic drills.

Injuries associated with the use of computers or their accessories include controller wrist pain, mouse elbow and blisters across the centre of the palm. It has been reported that some children are developing signs of RSI as they play the games for hours. These sorts of injuries occur from repeated physical movements and can result in damage to tendons and muscles.

In March 2000, Nintendo agreed to provide protective gaming gloves to owners of the video game Mario Party which had been blamed for cuts, blisters and other hand injuries. The company was committed to paying $80 million for the gloves and $575,000 for the cost of a New York Attorney General’s investigation which led to the settlement. The Attorney General held the view that the Mario Party games for the Nintendo 64 console can cause hand injury because to win, players are encouraged to rotate rapidly a controller with a grooved tip, which could cause injuries including blistering, burns, lacerations, punches and cuts.

SO WHAT ARE THE LEGAL ISSUES?

Negligence

It could be argued that both the developer, when creating the game, and the publisher when distributing the game, have a duty of care in relation to the game which one of them has created and the other manufactured and distributed. It is arguable that those parties should have foreseen that playing a violent game repeatedly might either cause injury to the player or influence him or her psychologically to go and carry out in real life what had been experienced on the screen. However, any player physically affected would have to prove both injury caused as a result of playing the game, (eg nausea, vomiting, dizziness, increased levels of aggression, sore hands and arms), compliance with all warnings in the manual or displayed on the screen and not excessive or unreasonable use of the controller or playing of the game. If the user is displaying any such injury, he or she would also have to prove that the developers and publishers’ negligence was the cause of the injury, although it is not necessary for it to be the sole or dominant cause. This may be hard to prove, but in light of an increasing body of evidence to suggest that there is a causal link between use of a computer game and increased levels of aggression, hand-arm vibration syndrome or mental problems, this is a potential risk that should not be ignored.

In order to reduce any potential liability that any developer, publisher or console manufacturer may be at risk of in the future, suitably worded disclaimers and guidelines should always be displayed on the packaging, manual and screen.

The problem, in the United Kingdom at any rate, is that a notice seeking to exclude liability for death or personal injury is void under the Unfair Contract Terms Act 1977. Accordingly, a developer, publisher or console manufacturer may not be able to escape liability if the consumer follows all guidelines but manages to injure himself through no fault of his or her own. What these notices will do, however, is show that the developer, publisher or console manufacturer has taken all steps it reasonably could to warn the user of the potential risks of injury. This is likely to result in a good defence where, for instance, a child has injured him or herself through continued and excessive use of a vibrating controller.

Contract

The consequences of a game being banned can prove to be a financial disaster for a developer or publisher who has invested a great deal of time and money into a game project. An advance is often paid to publishers by distributors at the time of release of a game which is recoupable from royalties. If a game is banned, however because of excessively violent content, a publisher or distributor will suffer if it has paid over large advances and then fails as a result to make sales to recover the advances paid, unless specific provision has been made in the contract to deal with this issue. Careful drafting is therefore required to ensure adequate protection is in place.

HAS ANY CASE ESTABLISHED A LINK BETWEEN AGGRESSION AND COMPUTER GAMES?

Games have been cited as contributing factors to some horrific crimes, but are the accusing fingers justified?

Although no one has yet succeeded in a court of law in establishing a link between aggression and playing violent computer games in real life, there have been a number of dramatic events in recent years resulting in legal proceedings being issued against publishers and developers of computer games.

In 1997 in West Paducah, Kentucky, the parents of three girls shot at Heath High School filed a $130m lawsuit against 25 media companies including Time Warner, Nintendo, Sega of America Inc., Atari Corporation, Nintendo of America, Sega of America Inc. and Sony Computer Entertainment. The lawsuit was for negligence based on their not warning consumers that content they made available could incite copycat violence. The basis of the claim was that, as the gunman, high school freshman Michael Carneal, played violent computer and video games, visited Internet pornography sites and watched violent movies, he was influenced sufficiently by them to commit murder. In April 2000, a federal judge dismissed the lawsuit based on finding that the video game makers could not have foreseen what Carneal would do, having played their games. The judge’s opinion was based heavily on a similar case that arose a decade ago in which the Sixth US Circuit Court of Appeal held that the makers of the Dungeons and Dragons popular role playing game were not liable for a teenager’s suicide. The West Paducah shooting was among the first in a string of school shootings nationwide that also included Jones Burrow, Arkansaw, Stringfield, Oregon and Columbine High School in Littleton, Colorado.

More recently, the mother of a 21 year old man called Shawn Woolley, whose son committed suicide while playing the popular online game EverQuest, is planning to sue Sony Online Entertainment, arguing that the company should have distributed the game with a warning about its addictive nature, according to a report by the Milwaukee Journal Sentinel.

CONCLUSION

Caselaw has been unable to establish a link between aggression and computer games and has resulted in a number of US cases being dismissed, although it will be interesting to monitor the progress of the Sony case once it gets to court. Recent research has concluded that there is a risk that playing violent computer games causes the player to be more aggressive. The British Medical Board has recognised that players are at risk of developing ‘hand-arm vibration syndrome’ from the use of the vibrating handsets over prolonged periods of time. Players should also be aware that they may suffer from certain side effects by playing the game, particularly if they have an existing medical condition, such as epilepsy, migraines, nausea and dizziness. Publishers, developers and console manufacturers should therefore seek to reduce their potential liability by always providing suitable playing guidelines and including appropriately worded disclaimers and warning notices in a sufficiently prominent position on the packaging, manual and on the screen displayed prior to the commencement of the game.