Games, Disability and Anti-Discrimination Laws

[This post is reproduced from http://www.gamerlaw.co.uk/.  You can speak with Jas via Twitter: www.twitter.com/gamerlaw]  

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:

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…


Follow us at www.twitter.com/gamerlaw!

Obligatory legal stuff:

© Jas Purewal 2010. Gamer/Law and this post are intended only as a means of bringing news of games and technology law and practice to its readers; it is not intended to provide legal advice and is no substitute for it. If you'd like to contact us concerning the contents of this blog or any other games or technology law-related topic, you can email here or tweet GamerLaw.  Thanks.