Analysis: Can you sue someone through a game?

Using “web 2.0” means to sue people is a recent phenomenon. Most recently, a blogger has used an English High Court order served over Twitter to stop a rogue tweeter impersonating him.  Just before that, a New Zealand Court permitted service of proceedings through Facebook, as was first permitted in Australia.The question we’ve been thinking about today is this: can you sue someone through a game?

Let’s say for example that you’re defamed or harassed by person X in an online game (e.g. an MMO) and you want to do something about it. What can you do about it?
Well, what you probably can’t do is sue X in the game itself (although this will be the subject of another post later this week – watch this space!) You can of course make complaints to the devs under their complaints procedure. But that may not be enough for you for whatever reason. You may want to know who X is and to stop him in the real world. What then?
Could you sue the wrongdoer in the real world?
In principle, yes – but it would not be straightforward. You would need to establish: (i) a legal cause of action; (ii) the proper jurisdiction in which to bring that action; and (iii) the real-world identity of the wrongdoer.
The first two are of course questions of law, which themselves may raise serious issues that cannot easily be resolved. For example, is conduct which in the real world would constitute harassment still harassment when it occurs in the online world? We’re not sure that they are the same. For a start, there is at least an argument that gamers are more enured to conduct that would otherwise be considered harassment – for example, if you were flamed in the street by a stranger you are likely to be rather more aggrieved/scared than if you were flamed by a stranger in a Call of Duty multiplayer session.
Anyway, let’s assume you have an arguable legal cause of action. Where will you bring that action? This will depend on a range of factors, in particular the applicable jurisdiction laws of your home country. It may be that you can sue in your own country, or it may be that you have to sue in the country of the wrongdoer or possibly even in the country where the harm was suffered (although good luck working that out for a game).
This gives rise to a difficult practical issue: how do you identify the real-world identity of the wrongdoer? Answer: it can in principle be done through the Courts (because no-one will willingly give you private information about someone else without a Court order), but it is expensive and time-consuming. One way of doing it would be to seek a Court order against the game devs/publisher seeking disclosure of details regarding X’s online details, e.g. his avatar details, country of residence and IP address (in England and Wales this is known legally as a Norwich Pharmacal order). Assuming you obtain that information, you would then need to carry out further investigation (and quite possibly seek further Court orders) in order to ascertain the X’s ISP and then, from that ISP, obtain the personal details of X himself. At that point, you would be in a position to commence legal proceedings against X directly.
Sounds a bit torturous? It has been done before (sort of). In Applause Store Productions Limited & Matthew Firsht v Grant Raphael (a 2008 English case – in which Olswang acted for the claimant as it happens!), Matthew Firsht discovered that an unknown person had created a false and defamatory profile of him on Facebook. After a long series of enquiries, Mr Firsht was eventually able to ascertain that the wrongdoer (Grant Raphael) was an old schoolmate of his. The matter went to trial and ultimately Raphael was found liable for defamation.
Could you sue the game publisher?
Assume that we can establish a cause of action and the proper jurisdiction in which to bring the claim, but either person X cannot be identified, or it is not worth identifying him, or that your real goal is not to punish the wrongdoer but to get rid of the damaging material which he posted somewhere in-game (e.g. on a bulletin board). In that case, in principle you may be able to sue the game publisher for defamation on the basis that it has “published” the defamatory material by permitting it to be publicly accessible in-game.
Defamation law is pretty complicated and there would be a range of responses/defences available to the publisher. However, the most likely route it would take would be to rely upon a defence under e-commerce legislation under which it will avoid liability it can show that it is simply hosting the information and that it acted quickly to remove said information upon receipt of any complaint. Of course, if other persons have since copied and replicated the damaging material in the meantime (as is often the case), a single take-down may be of limited value. Taking this kind of action, especially where gamers are concerned, can also give rise to problems (e.g. the Streisand effect).
This is all a bit academic, isn’t it?
Well, only in the sense that no-one has tried it yet. But, sooner or later, it seems to us pretty likely that someone will try to sue someone else through a game. After all, a game is among other things a method of communication between people just like letters, emails or telephone conversations. Maybe it will be a principled individual or corporation seeking to protect his/her/its reputation, or maybe it will just be the biggest flamer you’ve ever seen on a unprecedented power-trip. We’ll have to wait and see…