Introduction
From their humble beginnings as pixelated games in gaming arcades or bars, digital games have evolved into a deeply immersive medium with a large audience, played across gaming consoles, computers, and mobile phones. The number of players of digital games has crossed 2.5 billion worldwide.[i] This increase in the popularity, combined with the interactivity of digital games has invited increased scrutiny, especially over the violent content promoted through such games.[ii] Many of these issues touch upon questions of free speech and this has led to questions on the cultural value that digital games disseminate in society.[iii]
This article will analyse whether digital games qualify as art and hence qualify for appropriate free speech protection. The forthcoming sections will (i) discuss the intersection between digital games, violence and free speech; (ii) examine laws in the United States and India that seek to regulate digital gaming content; and (iii) argue that a law to regulate digital games should respect game developers’ freedom of expression.
Intersection between Violence and Digital Games
The intersection between digital games and violence, and the effect on the speech and expression of citizens has led to a number of attempts to regulate digital game content. The first such move towards regulation came not from a government but from the game distributor Nintendo.[iv] Nintendo decided to remove excessive violence from the notoriously violent game, Mortal Kombat. However, it suffered losses when rival distributors sold the version of the game containing blood and gore and outsold Nintendo by almost five times.[v]
In 2000, digital game developers in the US were forced to self-regulate and set up the Entertainment Software Ratings Board (“ESRB”) under threat of being regulated by the federal government.[vi] The ESRB was set-up, but even this self-regulation did not prevent state governments from attempting to regulate and restrict the sale of violent digital games.[vii]
Further, there is a trend of linking terrorist or violent activities with games having violent content in them. The debate came to a head with the Columbine shootings in 1999,[viii] and digital games were also blamed for the Texas shootings in August 2019.[ix] Even in India, the reasons for the ban on Player Unknown’s Battleground (“PUBG”) are based on the violent and terrorist sentiments that the game purports to promote.[x]
This trend of linking terrorist/violent acts with the depiction of violence in digital games has continued without any conclusive evidence.[xi]Various reports and studies highlight that there are no more than 3-4% of violent incidents/crimes which are related to the perpetrator’s liking a particular violent digital game.[xii]
In India, gamers have faced restrictions for engaging with games that include violent content. The digital game PUBG has been banned in a number of Indian cities, and police authorities have even arrested people for playing the banned game.[xiii] These incidents also caution game developers while they develop digital games. Without an industry-wide standard like the ESRB, game developers in India could find it even harder to resist government regulation of digital game violence than game developers in the US.
Digital games are thus susceptible to content-based restriction in different forms, ranging from banning certain games from Google Play store for their violent content[xiv] to linking mass shootings with violent gaming content.
Position of Law on Regulating Free Speech in Digital Games
US Perspective
In 2005, California passed a law prohibiting the sale of violent digital games to persons aged under 18 years.[xv] The question of whether a game was violent or not was decided on the basis of the Miller test.The Miller test is used to ascertain whether digital content is obscene or not and evaluates if the work would appeal to the prurient interests of an average person, or if the work taken as a whole lacks literary, artistic, political or scientific value.[xvi] The law was challenged in court, and eventually reached the Supreme Court of the United States (“SCOTUS”).
Prior to this case, lower courts in the US had held in Best Family Showplace v. City of New York that digital games were similar to mechanical forms of entertainment like pinball, and were therefore not entitled to protection as free speech.[xvii] However, this decision of the SCOTUS, held that games are a form of expression entitled to the same free speech protection as books, movies and plays. As a consequence of this decision, the California law was subjected to the test of free speech analysis and was eventually struck it down by a majority.[xviii] The dissenting opinions did not contend that digital games are not free speech; they only disagreed on the validity of the California Law.[xix] The majority opinion of the SCOTUS validated their judgement on the basis of interactivity of digital games,[xx]and concluded that it should be protected under freedom of speech.
Position in India
The Constitution of India guarantees the freedom of speech and expression as a fundamental right, subject to reasonable restrictions. India does not yet have a clear stance on the question of whether digital gamesare entitled to free speech protections under Article 19 of the Constitution.[xxi] However, the case of Tata Sons v. Greenpeace guides us to the stance taken by the Indian courts on content-based regulation on digital games. In this case, Tata Sons Ltd. had filed a case against Greenpeace International[xxii] for alleged defamation, trademark infringement and promotion of activism in public. Greenpeace had opposed the construction of Dharma Port Project, a joint venture between Tata Sons and L&T, as it had an adverse impact on the Olive Ridley turtles living in the region. The game ‘Turtle v. Tata’ was formed by Greenpeace along the lines of the popular Pacman game which depicted turtles being chased by the Tata logo.
While rejecting Tata’s application for an interim injunction against Greenpeace’s Turtle v. Tata, the Delhi High Court held that the use of Tata’s trademark was parodic and the court would protect free speech and would not sit in judgment on the medium used for such speech since multiple forms of expression can be used in a democracy.[xxiii] While the court did not explicitly recognise digital games as expressions that were entitled to free speech, this case indicates that Indian courts are moving in a similar direction to the SCOTUS in holding that digital games as form of expression are not different from other forms such as books or movies.[xxiv]
While there are no specific laws currently regulating the content of digital games in India, there are a number of laws addressing concerns similar to those raised by digital games.[xxv] These include the Young Persons’ (Harmful Publications) Act, 1956, which prohibits ‘publications’ which portray offences, violence, or acts of ‘horrible or repulsive nature’ which would ‘corrupt a young person’, a young person being anyone under 20 years of age,[xxvi] and the Indian Penal Code, 1860 (“IPC”), which criminalises obscenity and defamation.[xxvii] While analysing allegedly obscene content, Indian courts have asked whether the work as a whole appeals to the ‘prurient interest’ of the users, whether it is patently offensive, orwhether taken as a whole it lacks literary, artistic, political or scientific value.[xxviii] This is almost identical to the Miller test applied to determine which games were under the California law seek to regulate digital games.[xxix]
The ban on PUBG in many cities was challenged through a PIL in the Gujarat High Court.[xxx] However, this PIL was dismissed and as a result the merits of the ban have not been discussed by courts yet. At the same time, the Bombay High Court has directed the central government to review the game and take ‘appropriate action’.[xxxi]
Artistic Value of Digital Games
Digital gaming content has witnessed a higher degree of legal scrutiny with the development of technology and inclusion of art in digital games. The 1980 decision by a US federal district court which held that digital games did not qualify for free speech protection, did so because digital games, were similar to mechanical games that had no ‘informative’ aspect which deserved constitutional protection.[xxxii] As recently as 2012, it was being argued that digital games are not artistic expression since art is the result of an artist’s personal vision while digital games are merely grounds where the creators have ceded control for players to create experiences.[xxxiii]
However, today’s digital games are strongly driven by the designer’s vision, and their interactive element does not take them away from their artistic value.[xxxiv] Gaming engines have been used to digitally recreate historic sites, and artists are now combining games and historic recreations to spread awareness about the horrors of real-world war.[xxxv] This artistic expression is used to explore serious philosophical and political questions in ways books and movies cannot allow– with developers forcing gamers to explore these complex themes themselves through decisions in the gameplay.[xxxvi] This was also recognised by the SCOTUS, with even the dissenting opinion agreeing that digital games are protected free speech because they “depict important expressive and artistic elements”.[xxxvii]
Conclusion
Digital games have grown considerably in their complexity as well as popularity due to their interactive nature. They have developed into interactive art for expressing political opinions and examining complex philosophy.
Any law and policy concerning digital gaming content should take into account the artistic and expressive value they have in the society, before imposing a uniform regulation on all forms of content. This could be achieved through a self-regulatory mechanism similar to the ESRB, which would label games as suitable for particular age groups rather than imposing a blanket ban on any particular kind of content. This will help in maintaining the freedom of speech while protecting younger audiences from certain kinds of content and will go a long way in the development of digital games.
[i]Tom Wijman, The Global Games Market Will Generate $152.1 Billion in 2019 as the U.S. Overtakes China as the Biggest Market, 18 June 2019, available athttps://newzoo.com/insights/articles/the-global-games-market-will-generate-152-1-billion-in-2019-as-the-u-s-overtakes-china-as-the-biggest-market/.
[ii] Benjamin Cirrinone, Video Games as Free Speech, Honors College, available athttps://digitalcommons.library.umaine.edu/cgi/viewcontent.cgi?article=1161&context=honors.
[iii] Michael Groll and Malgorzata Anna Bronikowska, Definition, Classification, Dissemination of Sports, available athttps://www.researchgate.net/publication/281784618_Definition_Classification_Preservation_and_Dissemination_of_Traditional_Sports_Games_in_Europe
[iv] Rob Crossley, Mortal Kombat: Violent game that changed video games industry, BBC, available athttps://www.bbc.com/news/technology-27620071.
[v] Will Fulton, How Mortal Kombat’s gruesome fatalities led to video-game ratings, Digital Trends, available athttps://www.digitaltrends.com/gaming/how-mortal-kombats-gruesome-fatalities-led-to-video-game-ratings/.
[vi]Chris Kohler, July 29, 1994: Videogame Makers Propose Ratings Board to Congress, available athttps://www.wired.com/2009/07/dayintech-0729/.
[vii]Nilay Patel, Supreme Court says video games are protected free speech, California can’t regulate sales of violent games: a complete analysis, The Verge, available athttps://www.theverge.com/2011/6/27/2515183/supreme-court-video-games-protected-free-speech-analysis.
[viii]Tim Radford, Computer games linked to violence, The Guardian, https://www.theguardian.com/uk/2000/apr/24/timradford.
[ix] Jane Coaston, The top House Republican is blaming video games for the weekend’s mass shootings, Vox, 4 August 2019, available athttps://www.vox.com/2019/8/4/20753725/el-paso-dayton-shootings-video-games-gop-mccarthy.
[x] Rohit KVN, Boy kills brother after getting scolded for PUBG craze, Deccan Herald, available at https://www.deccanherald.com/national/boy-kills-brother-after-getting-scolded-for-pubg-craze-744005.html.
[xi] Jill Disis, The long history of blaming video games for mass violence, CNN, available athttps://money.cnn.com/2018/03/08/media/video-game-industry-white-house/index.html.
[xiii] News 18, PUBG Mobile Ban: Rajkot Police Arrests 6 More For Playing The Battle Royale Game During a Ban, available athttps://www.news18.com/news/tech/pubg-mobile-ban-rajkot-police-arrests-6-more-for-playing-the-battle-royale-game-during-a-ban-2067531.html.
[xiv] The Times, Google bans apps that tempt children with violent content, available athttps://www.thetimes.co.uk/article/google-bans-apps-that-tempt-children-with-violent-content-c6fxw39cz.
[xv]Nilay Patel, Supreme Court says video games are protected free speech, California can’t regulate sales of violent games: a complete analysis, The Verge, available athttps://www.theverge.com/2011/6/27/2515183/supreme-court-video-games-protected-free-speech-analysis.
[xvi] Benjamin Cirrinone, Video Games as Free Speech, Honors College 162, available athttps://digitalcommons.library.umaine.edu/cgi/viewcontent.cgi?article=1161&context=honors.
[xvii] America’s Best Family Showplace v. City of New York, 536 F. Supp. 170 (E.D.N.Y. 1982), available athttps://law.justia.com/cases/federal/district-courts/FSupp/536/170/2009778/.
[xviii]Brown v. Entertainment Merchants Assn.564 U.S. 786, available athttps://supreme.justia.com/cases/federal/us/564/786/.
[xix]Brown v. Entertainment Merchants Assn.564 U.S. 786, available athttps://supreme.justia.com/cases/federal/us/564/786/.
[xx] Opinion (Scalia), Brown v. Entertainment Merchants Assn.564 U.S. 786, available athttps://supreme.justia.com/cases/federal/us/564/786/.
[xxi] Nishith Desai Associates, The Curious Case of the Indian Gaming Laws, available athttp://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/The_Curious_Case_of_the_Indian_Gaming_Laws.pdf.
[xxii] Devin Banerjee, Tata sues Greenpeace over turtle game, Wall Street Journal, available athttps://blogs.wsj.com/indiarealtime/2010/07/21/tata-sues-greenpeace-over-turtle-game/.
[xxiii]Tata Sons Ltd. v. Geenpeace International, I.A. No.9089/2010 in CS (OS) 1407/2010, available athttp://lobis.nic.in/ddir/dhc/SRB/judgement/31-01-2011/SRB28012011IA90892010.pdf.
[xxiv]Tata Sons Ltd. v. Geenpeace International, I.A. No.9089/2010 in CS (OS) 1407/2010, available athttp://lobis.nic.in/ddir/dhc/SRB/judgement/31-01-2011/SRB28012011IA90892010.pdf; Brown v. Entertainment Merchants Assn.564 U.S. 786, available athttps://supreme.justia.com/cases/federal/us/564/786/.
[xxv] Nishith Desai Associates, The Curious Case of the Indian Gaming Laws, available athttp://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/The_Curious_Case_of_the_Indian_Gaming_Laws.pdf.
[xxvi] Young Persons (Harmful Publications) Act, 1956, available athttps://www.ncpcr.gov.in/view_file.php?fid=436.
[xxvii]Sections 292, 294, 499, and 500 of the Indian Penal Code, 1860, available athttps://indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf.
[xxviii] Director General, Directorate General of Doordarshan&ors. v. Anand Patwardhan &anr. (2006) 8 SCC 433, available at https://sci.gov.in/jonew/judis/27983.pdf.
[xxix] Benjamin Cirrinone, Video Games as Free Speech, Honors College 162, available athttps://digitalcommons.library.umaine.edu/cgi/viewcontent.cgi?article=1161&context=honors.
[xxx] Aryan Babele, Gujarat HC rejects PIL challenging PUBG ban; Bombay HC directs MEITY to take action, Mediamana, available athttps://www.medianama.com/2019/04/223-gujarat-hc-rejects-pil-challenging-pubg-ban-bombay-hc-directs-meity-to-take-action/.
[xxxi] Aryan Babele, Gujarat HC rejects PIL challenging PUBG ban; Bombay HC directs MEITY to take action, Mediamana, available athttps://www.medianama.com/2019/04/223-gujarat-hc-rejects-pil-challenging-pubg-ban-bombay-hc-directs-meity-to-take-action/.
[xxxii] America’s Best Family Showplace v. City of New York, 536 F. Supp. 170 (E.D.N.Y. 1982), available athttps://law.justia.com/cases/federal/district-courts/FSupp/536/170/2009778/.
[xxxiii] Jonathan Jones, Sorry MOMA, video games are not art, the Guardian, available athttps://www.theguardian.com/artanddesign/jonathanjonesblog/2012/nov/30/moma-video-games-art.
[xxxiv] Keith Stuart, Are video games art: the debate that shouldn’t be, The Guardian, available athttps://www.theguardian.com/technology/gamesblog/2012/dec/06/video-games-as-art.
[xxxv] Hong Kong Arts Development Council, Autosave: Redoubt, available athttps://www.autosaveredoubt.com.
[xxxvi] Keith Stuart, Ubisoft games are political, says CEO – just not the way you think, The Guardian, available at https://www.theguardian.com/games/2018/jun/25/ubisoft-tom-clancy-division-2-politics-criticism.
[xxxvii] Dissent (Breyer), Brown v. Entertainment Merchants Assn.564 U.S. 786, available athttps://supreme.justia.com/cases/federal/us/564/786/.
This blog is a part of the RSRR Blog Series on E-Sports in association Ikigai Law. By Sarthak Doshi, Associate at Ikigai Law