By Wolf Chivers

Predatory Game Design

Did you know that video game addiction is a condition recognized by the World Health Organization? As more and more games have implemented microtransactions, countries around the world have started considering whether those games should be regulated as a form of gambling. Certainly people sometimes spend incredible amounts of money on in-game microtransactions, especially in the form of loot boxes that provide randomized in-game benefits in exchange for actual money. So when parents hear that their kids are potentially getting addicted to video game gambling, what then is likely to happen? Lawsuits—lots and lots of lawsuits. 

Identifying Claims

What exactly aggrieved parents might claim in those lawsuits, however, is not as clear as it might seem at first glance. Many countries in the world are considering regulating loot boxes as some form of gambling, but have not yet explicitly done so, which narrows the options for parents. What is left? Is it negligence on the part of the game companies? Maybe one could argue that the companies have ignored known risks in their design, but the companies are not making these games by reckless mistake. The core of some of the lawsuits is that the companies are intentionally making the games as addictive as possible. If so, it seems like some sort of intentional tort. However, most of the classic intentional torts that someone might come up with at first glance—assault, battery, trespass, and the like—do not seem intuitively to fit. 

If the claim is not negligence and not obviously an intentional tort, it might seem to leave plaintiffs in an awkward spot. The games represent a peculiar intersection between the fact that the games are fun, widely-enjoyed activities that are harmless in moderation, and the fact that they are also designed to be addictive and can cause great harm when abused. In short, the game practices have many of the same issues as conventional gambling, target a much younger demographic, and lack equal regulatory oversight. If game companies say “This isn’t gambling; all we did is make a fun game,” are there legal theories plaintiffs could still use? There are at least two that the plaintiffs are currently claiming—that the games are defectively designed and that the companies failed to provide adequate warnings of the safety risks. 

Design Defect

The strongest claim available to the plaintiffs in these lawsuits may be in product liability; that is, alleging that the games were defectively designed. A design defect is a flaw in a product that was produced as intended (contrasted with a manufacturing defect), and works as intended, which then produces harm to consumers. In order to show a design defect, the plaintiffs at least must show that the product posed a foreseeable risk of danger to a consumer using it for its intended purpose. That much is likely easy; the possible harms and dangers of video game addiction are wide-ranging and encompass everything from financial harm to long-term mental health challenges. 

In some jurisdictions, however, the plaintiffs also must show that there was a reasonable alternative design, both practically and economically, which is potentially more difficult. If the companies have designed the games to be as addictive as possible, and therefore bring in as much money as possible, any less-addictive alternative designs are logically likely to bring in less money. There are, however, at least some alternatives that seem eminently reasonable; Epic Games settled with the FTC over allegations that, among other things, Fortnite players were tricked into spending money simply by confusing button layouts. Additionally, even if the games were to adopt less-addictive designs, they would likely still be worth billions of dollars, which certainly seems to indicate that they could be less addictive without being significantly less economically viable.

Failure to Warn

Game companies may rebut a design defect argument by suggesting that the games’ designs are not defective or inherently harmful—there are plenty of people who play them safely, and consumers presumably want the games to be as fun as possible. The addictiveness, the argument might run, is a feature, not a bug, distinct from something like a brake failure in a vehicle line. If so, plaintiffs could fall back on a claim that the companies failed to warn consumers of the inherent risks.

A failure to warn claim alleges that the company failed to provide adequate warnings about the risks of using a product, or instructions on how to do so safely. Game companies are no strangers to the process of supplying warnings; for instance, game consoles already have extensive, in-depth Health and Safety sections in their manuals that cover a broad range of known risks. If the plaintiffs can show that the game companies intentionally designed their games to be addictive, failing to provide warnings to that effect is a strong claim. 

The two common defenses in failure to warn cases are that the risk was obvious, or that the misuse was unforeseeable, neither of which seems likely to work to the game companies’ benefit. First, at least in some cases the purpose of the design was to trick people into spending money, in which case at least some of the risks are patently non-obvious. Second, the use to which the consumers put the games, i.e. playing them, was not only entirely foreseeable, it was the whole point. A failure to warn claim thus seems likely to succeed.

Conclusion

Even though design defects and failures to warn seem like strong claims, they also seem vaguely unsatisfying given the degree of harm and manipulation involved. At least one man spent over $16,000 in approximately a year and may have ruined his life. Anyone might easily feel wronged if they later discovered the games were designed to suck that much money out of them, and that example involved a mature adult. If, as alleged, game companies are intentionally getting impressionable children addicted to their games to milk as much money out of them and their parents as humanly possible, with no regard for the harms it may cause or the long-term damage to the children, lawsuits over whether there were enough warnings in the manual seem trite.

Given the current state of regulation, however, it is not entirely clear what else those impacted by the games’ predatory designs ought to do. There is also no easy answer for regulators, since the games likely should not be outlawed entirely. Even so, at a bare minimum, children should not be the target audience. Minimum age laws akin to restrictions on casinos or other forms of gambling would at least reduce the risk to some of the most vulnerable, and might provide a clear legal framework for plaintiffs to use if game companies continue targeting children.

#WJLTA #videogames #microtransactions #lootboxes #gambling #productliability #addiction