Games, Disability and Anti-Discrimination Laws

Sony succeeded last week in defeating a lawsuit by a disabled US gamer, who had claimed last year that Sony games like EverQuest violated the Americans With Disabilities Act by denying him “full and equal enjoyment” to the games. The gamer, Alexander Stern, who apparently has impaired vision, argued that Sony should provide him with “auxiliary aides and services” so that he could enjoy the games fully and compete with other gamers equally.  This has got me thinking about an interesting issue: should gamers be protected by anti-discrimination laws?

So what do anti-discrimination laws do?

The key purpose of anti-discrimination laws is to ensure that employers/providers of services in the public sphere cannot discriminate against a person on the basis of his/her personal characteristics (e.g. physical disability, belief, gender, nationality, ethnicity etc).  In the UK, the principal legislation which sets out these protections are the Equality Act 2006 and the Disability Discrimination Act 1995.

The ‘public’ element is critical: anti-discrimination laws generally only cover things that happen in public.  So, for example, it is generally illegal to refuse someone else access to a restaurant based on their nationality, but you could refuse them access to your home for pretty much any (peaceful) reason.

It’s important to bear in mind that anti-discrimination laws do not generally apply between private individuals.  If person A makes racist comments to person B, that’s not a matter for anti-discrimination law (it might be a race-related offence in your jurisdiction, though).  In other words: discrimination laws only kick in where you need something from someone, but they won’t give it to you because of your personal characteristics.

Why should games be protected by anti-discrimination laws?

The Sony case itself shows that there is a need for games companies to take discrimination of disabled gamers seriously, even if the discrimination was inadvertent.  Similarly, consider the following hypothetical examples:

  • A MMO bans men from playing as women and vice versa
  • Another MMO bans gay people from playing it
  • A game is released in a multilingual country (e.g. India) in only one little-spoken language
  • A game is released on terms that it can only be sold to a particular ethnic group  

Seem far-fetched? One of them (the first) has already happened.  In each of these situations, there would be an argument that gamers are discriminated against.  Unless they have legal protection, the only real way they could respond would be to vote with their feet by leaving the game, which for many would be unacceptable.

That said, on the other hand games companies would no doubt be understandably concerned at the cost that all of this could involve (for example, the cost of making an AAA game fully accessible to both fully and partially sighted gamers).  So clearly there would have to be a balancing exercise, with protection for gamers but not at extortionate cost to games companies. A legal regime could help to resolve this situation – hence the argument that anti-discrimination laws should protect gamers.

Do anti-discrimination laws already cover games?

Following the Sony case, the answer for the USA seems to be: no.  Judge Percy Anderson ruled in this case that Alexander Stern’s claim failed because US case law had already established in 2000 that the anti-disability discrimination law on which he relied (the Americans with Disabilities Act) only applies to “places of public accommodation”, which the judge said means actual physical places and not games.

Therefore, the judge said the US anti-discrimination laws would cover Stern if he was unable physically to enter one of Sony’s games conventions, but would not cover Stern being unable to play Sony games themselves.  As a result, the judge did not go any further into how games could be protected by anti-discrimination law (and, in particular, whether game playing is ‘public’ or ‘private’ – more on that later on).

That decision seems effectively to exclude US gamers from the protection of anti-disability discrimination laws.  This is a pity, particularly since the learned judge seems to have taken a pretty unenlightened approach to online games, even if he was required to follow the established case law. 

But, other countries have not adopted that same legal analysis.  The UK analogy to the Americans with Disabilities Act (called the Disability Discrimination Act 1995), for example, does not have the same express US requirement that the discrimination must take place in relation to a physical place.  So, leaving aside the slightly odd idea that discrimination has to have occurred in relation to a physical place, I ask…

How should games be protected by anti-discrimination laws?

The basic framework is already there in the US and UK laws (i.e. the Americans with Disabilities Act and the Disability Discrimination Act 1995):

(i) Prove there was actually discrimination; and
(ii) Prove it took place in the public sphere.

Whether there was actually discrimination will always depend on the facts of the case, so not much more I can say about that.  The interesting question though is whether game playing takes place in the public or private spheres.

Is playing games a private or public activity?

I think there is a good argument that game playing is a public activity simply because games are open to absolutely everyone, assuming of course gamers have the minimum level of hardware and have paid for the game of course. The argument is strongest for multiplayer games, especially MMOs, where gamers are encouraged to make the game as public as possible (by that logic though, playing single player games is less likely to be a public activity).

Take a real world parallel: going to a theme park.  You have to pay to get in, but otherwise you are pretty much free to go on the rides and play the games as you wish, with whoever you wish.  To my mind, that is no different to playing a multiplayer game with your friends.  Therefore, if entry to theme parks is covered by anti-discrimination laws, why not playing games too?

Conclusion: there is a good argument that playing games does take place in the public sphere, and so we pass the first and main hurdle for anti-discrimination laws and games (the idea that games take place in the public sphere has a much wider application of course, but that’s a topic to discuss on another day…)Now, in relation to discrimination such as arbitrarily banning certain people from playing your game, the response would then be straight-forward: you are legally prohibited from doing it.  But disability discrimination and games could be harder to deal with, because at that point we get into a balancing exercise between protecting disabled gamers but not to the extent of bankrupting the games companies or ruining games for everyone else.   In particular, games companies would have a strong argument that the simple reality is that some games simply cannot feasibly be adapted for disabled gamers. Getting the balance right would be difficult, yes, but just because it is difficult doesn’t mean it should be ignored.

Of course, the Sony case seems to settle the position in the USA for the foreseeable future and, unless and until there is a court challenge in the UK or elsewhere, we don’t seem likely to see any movement towards a more explicit way of helping disabled gamers, or protecting gamers from discrimination more generally.  This is yet another growing legal issue in gaming about which we will have to watch, wait and see…News source: THR, via Virtual Policy Network

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4 comments

  1. What auxiliary aids and services did the gamer wish for Sony to provide? What assistive technology does the gamer use to access these games? Surely, he was not suggesting that Sony provide assistive technology so he could access their site? I am not sure how the site or game could be designed accessibly, but I am no expert. Is it even technically feasible? Very interesting article. Thanks for sharing.

  2. The trouble with this type of over arching law is that it doesn't account for the obvious difference between discrimination and need. The 4 examples you have above relate to people who can be considered as equal not being given an equal chance, the problem with a person with a physical disability is that they require specific help. You could argue that a car manual should be manufactured so that it's in every possible language, maybe even Braille, but you still couldn't reasonably argue that a completely blind person should be able to drive a car and all car manufacturers should provide a system to allow that to happen.
    I'm also not sure who 'A MMO bans men from playing as women and vice versa' discriminates against unless the game itself is degrading to one of the sexes?

  3. @post 1 –
    The Stern judgment didn't explain in the litigation what auxiliary aides and service he was seeking. I understand that such assistance technology is in fact available in principle, but the question is very much one of cost/benefit for the developer. If you are interested to hear more, I suggest having a look at http://www.ablegamers.com – their forum guys could assist further.

    @ post 2 –
    Yes, I agree there is a difference between the 4 examples and the case of disability. But, as anti-discrimination laws work, for the 4 examples any attempt to restrict access to 'public services' would simply be prohibited, whereas for disability cases the public service provider would be required to take "reasonable steps" to permit access to the service. So, in your example, obviously it would not be reasonable for a car manufacturer to have to take steps to permit a completely blind people to drive a car.

    As to the 'a MMO bans men from playing as women and vice versa', I think it is a mistake to assume that the discrimination MUST cause harm to be actionable. Obviously, it would depend on the detailed legal rules of the jurisdiction, but as a general statement it is the discrimination itself which is actionable, not the harm suffered. Otherwise, everyone who discriminates would simply defend a lawsuit and argue 'but you haven't suffered any loss'. Well, actually they would always argue that, but more as an evidential point to limit a plaintiff's financial recovery rather than to knock a lawsuit out altogether.

  4. Thanks for responding Jas but I still don't see where the discrimination is in the case of 'a MMO bans men from playing as women and vice versa', assuming that the only difference between the male and female avatars is visual. It's a restriction in the game but it doesn't discriminate, as it's saying no player can play as the opposite sex. If it were to say that men can play as either but women must play as woman then that would be a case for discrimination. Otherwise, having seperate male and female toilets could be considered discriminatory.

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