Editor’s Note: Thomas Stroud is a member of the Personal Injury and Litigation Practice Groups at Ward and Smith, P.A.

The Issue of Violence in Videogames

Some believe the alleged role of videogames in increasing violence demands accountability on the part of videogame providers. The title of this article quotes Devin Moore, a young man arrested on June 7, 2003, for brutally murdering three Fayette, Ala., police officers. Moore allegedly spent hundreds of hours playing the videogame "Grand Theft Auto," and he began living out what he had seen in the game which included killing the police officers.

Beginning in the 1950s, many people blamed the media for society’s violence because it inundated readers and viewers with violent thoughts and images. At that time, the problem often was identified as comic books, which were alleged to have enticed and led their readers into criminal activity and violence. Since then, fingers have been pointed at nearly every type of media including movies, music, the internet, board games, newspapers, and books. Recently, however, the focus has shifted to the violence in videogames as a cause of violent actions and criminal behavior. Time and time again, victims of violence and their families have tried to hold videogame developers and manufacturers liable for violent acts, alleging their loss stemmed from the hours, days, and even months that the perpetrator spent playing the developer’s and manufacturer’s game which often was filled with over-the-top violence and vile criminal behavior. The victims and families argue that the relevant videogame has desensitized and brainwashed the player-perpetrator, causing the perpetrator to lash out and commit a violent crime against society and the victim or the victim’s loved ones.

Precedent in the Courts

The outcome in these cases has been consistent, with courts ruling that responsibility for the violent acts and crimes committed by those playing videogames does not belong to videogame developers and manufacturers.

The plaintiffs also commonly allege that there is general negligence on the part of the developers and manufacturers in developing, marketing, and selling such violent games, and that there should be liability imposed on them when violent acts arise. The response to these allegations from courts across the country also has been in favor of the videogame developers and manufacturers on the basis that: (1) there has been insufficient evidence produced that the developer or manufacturer had, or could have had, knowledge or foresight that such acts may occur; and (2) the developers and manufacturers have the right to make and market these games based upon freedom of speech principles.

Duty of Care

In North Carolina, along with many other states, every person owes a general "duty of care" to others. This means that each person must act in a way so as not to cause foreseeable harm to another person. Taking an action which a reasonable person would foresee will cause harm to others generally may be considered negligent, and the person taking the action may be held civilly liable for the foreseeable damage such action may cause.

Like all members of society, videogame developers and manufacturers owe a duty of care to the public not to commit acts that a reasonable person could foresee will cause harm to others, and set into motion a chain of events which would lead to foreseeable harm. Plaintiffs argue that developers and manufacturers should foresee that individuals like Devin Moore will commit violent acts after being exposed to and playing certain videogames. To date, this has been too much of a stretch for courts and juries. The killing of an innocent victim has not been found to be a foreseeable consequence of playing a videogame because the two events are simply too far removed from one another for liability to arise, especially when there is no concrete connection between the violent act and the game itself.

Those in favor of liability have analogized the situation to that of the liability imposed on bars and restaurants that serve alcohol. Generally, a bar or restaurant owner may be held liable if the owner’s establishment serves a patron too much to drink, and the patron subsequently, while under the influence of the alcohol served, kills or injures someone. Courts have made clear, however, that there is a significant difference between the two scenarios. The bar or restaurant owner has every opportunity to observe the behavior of the patron and stop serving alcohol when intoxication is, or should be, obvious. In contrast, videogame developers and manufacturers cannot observe their players and understand their mentality while playing the game. Expecting the same treatment from videogame developers and manufacturers as is expected from bar and restaurant owners would impose a nearly impossible burden on videogame companies to try to figure out who is playing their games, how long the person is playing, and whether the player can distinguish fact from fiction.

Freedom of Speech

Finally, courts have been hesitant to find liability on the part of videogame developers and manufacturers because of freedom of speech protections afforded by the First Amendment to the United States Constitution. Videogames have been held to be protected "speech" in the context of the First Amendment. Protected speech can advocate criminal activity unless the speech is directed to inciting or producing imminent lawless action, resulting in what is called a "clear and present danger" of serious harm. Courts thus far have held that a videogame simply does not fit within the category of speech that incites and produces "imminent lawless action" and, therefore, does not lose its protection under the United States Constitution.

Conclusion

Courts have been unwilling to find liability on the part of videogame developers and manufacturers for murders and other criminal activity committed by players because such acts are not a reasonably foreseeable result of playing a videogame. However, if violent acts become more commonplace and can be tied more closely to the behavior displayed and depicted in videogames, violent real-life actions may come to be seen as a foreseeable consequence of the digital violence portrayed, the current trend of no liability may come to an end, and videogame developers and manufacturers may be held civilly responsible.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Thomas Stroud practices in the Personal Injury and Litigation Practice Groups, where he handles personal injury and wrongful death actions. Comments or questions may be sent to tes@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.