What do videogames, cigarettes and slot machines have in common? They’re all addicting, according to the World Health Organization (WHO). Since addiction and legal liability can sometimes go hand in hand, game designers (and app developers) would do well to pay attention whenever a new habit or hobby looks like it might be deemed harmful.
The WHO recently added “gaming disorder” to the proposed 11th revision of the International Statistical Classification of Diseases and Related Health Problems (ICD-11). Clinicians around the world rely on the ICD to classify and diagnose mental health disorders. In its proposed revision to the ICD, the WHO characterizes gaming disorder as a pattern of gaming behavior that results “in significant impairment in personal, family, social, educational, occupational or other important areas of functioning.”
Whether the final version of ICD-11 will include gaming disorder remains to be seen. That said, technology-related mental health disorders are the subject of ongoing debate. In 2003, the American Psychiatric Association identified gaming disorder as a “condition for further study.” Four years later, in 2007, the American Medical Association considered adding “gaming addiction” to its list of mental illnesses. Still, for businesses looking to anticipate risks, it’s best to assume that gaming disorder or something similar eventually will be recognized by medical authorities.
From a legal liability perspective, the question becomes: if medical authorities accept that videogames or other technologies are addictive, will game and app designers be liable for harms suffered by addicted gamers or app users? There is no singular answer to this question, but past litigation over tobacco and gambling could light the path ahead.
Lessons Learned from the Smoke-Filled Rooms
Smoking was not always considered addictive. Nicotine was not always considered a drug. Until the 1990s, tobacco companies prevailed in most lawsuits because the harmfulness of cigarettes was hotly contested. Indeed, in 1994, top tobacco executives testified before Congress that cigarettes had no dependency-inducing properties.
Even when tobacco companies acknowledged the harmfulness of their products, it didn’t matter. Throughout the 1980s, Big Tobacco prevailed in litigation after litigation by arguing that smokers assumed the risks associated with smoking. Courts agreed.
Everything changed in the 1990s. The medical community accepted that nicotine was dependency-inducing and that smoking caused numerous illnesses. Further, some courts viewed nicotine as a “drug” within the meaning of the Food, Drug, and Cosmetic Act. With nicotine considered a “drug,” tobacco was subject to increased regulation.
Public attitudes toward smoking in the 1990s also shifted seismically. Whereas smoking was once seen as cool or sexy, it was increasingly viewed as dangerous. With medical, legal and social mores shifting, the once Teflon-coated tobacco industry was suddenly bombarded with litigation, and it actually lost.
Two notable factors contributed to plaintiffs’ eventual success against Big Tobacco. First, 40 U.S. states went after the tobacco industry in the 1990s. The states were armed with public outrage and data evincing a costly public health crisis brought on by tobacco-related illnesses. Second, tobacco companies were advertising to children. Do you remember the Joe Camel cartoons? Kids loved Joe Camel, and adults took notice.
When companies target children, intentionally or otherwise, the public and the courts hold those companies to higher standards. For example, most courts recognize a different “assumption of the risk” standard for children than for adults. If an adult swims in shark-infested waters and is eaten for dinner, there is no legal liability, because the adult assumed the risk of swimming with sharks. The same is not always true when children are harmed. In Trupia v Lake George Cent. Sch. Dist., a New York court put it this way: “[c]hildren often act impulsively or without good judgment—that is part of being a child; they do not thereby consent to assume the consequently arising dangers, and it would not be a prudent rule of law that would broadly permit the conclusion that they had done so.” Children don’t always know what they’re doing, and we can’t blame them for that because, well, they’re kids.
The takeaway: even if adults can assume the health risks associated with playing videogames, children might not. Designers and developers should therefore pay special attention to products used by children. It would be wise to brainstorm ways to warn children (and parents) about the potentially addictive properties of games and apps. It’s unclear how such warnings might affect liability, but designers should at least begin the conversation.
Lessons Learned on the Casino Floor
Gambling is perhaps more analogous to videogames than tobacco. Gambling increasingly takes the form of an online game. However, whereas tobacco use leads to addiction in 67.5% of users, the extent of addiction from gambling and videogames is less clear-cut. Further, whereas smoking is easily connected to illnesses like lung cancer, videogames are tenuously connected to harms like educational or occupational impairment.
Even if videogames and apps are ordinarily harmless, perhaps, like gambling, games and apps can sometimes lead to harmful addiction. Turning to gambling litigation for guidance, what have courts done when casinos’ customers become addicted? The short answer is “nothing.”
In Caesars Riverboat Casino, LLC v. Kephart, an Indiana court put it like this: a casino “does not act in a reckless manner by marketing to individuals it knows to be compulsive gamblers[.]” (This quote comes from a case that was overturned, but on other grounds.) When the reviewing court discussed the casino’s recklessness, the court declared, “[w]e think it unnecessary to resolve this dispute today.” Instead, the reviewing court held that allowing the plaintiff’s “claim to go forward under the common law would shift primary responsibility from the gambler to casino. It is apparent that the legislature intended otherwise.”
Gambling is a highly regulated industry. For example, in Indiana, regulatory agencies have set up voluntary exclusion programs whereby “any person may make a request to have his or her name placed on a voluntary exclusion list,” and casinos “must have procedures by which excluded individuals are not allowed to gamble.” Courts in Indiana and other states agree where such exclusionary programs are in place, casinos are only obliged to exclude compulsive gamblers who self-identify through the programs. Casinos are not obliged to “refuse service to pathological gamblers who [do] not self-identify.”
There is good reason to believe that courts will treat game and app designers differently. First, unlike casinos and gambling, the videogame and app industries are not heavily regulated. Therefore, courts will likely extend common law principles such as recklessness to litigation involving videogame designers’ marketing to “compulsive gamers.”
Second, gambling is a decidedly adult activity. Children are forbidden from entering many casinos, which more or less shields casinos from harming children. Game developers do not enjoy similar protections. Game and app developers want children to use their products. It would be antithetical to their business models to exclude them. With that in mind, if medical authorities embrace gaming disorder as a legitimate pathology, children may receive much of the later diagnoses. Again, when children are harmed, courts are especially scrupulous.
Medical authorities will probably recognize gaming disorder or some other technology-related pathology soon. Companies operating in the gaming, app or smart phone spaces should thus consider the potentially addictive properties of their products, especially when those products are consumed by children. Courts, state legislatures and the public at large are especially unforgiving when children become addicted or are otherwise harmed by a product.
It’s possible that courts would be hesitant to extend liability to game and app designers for harms caused by a technology-related disorder. However, such disorders could just as easily ignite a firestorm of costly litigation, leading to multi-million dollar judgments and settlements. Legislatures could also impose burdensome regulations requiring designers to warn consumers about the addictive properties of videogames and apps.
Whether courts impose liabilities, legislatures impose regulations, or nothing happens, tech companies should pay attention. We are in uncharted territory. When explorers and entrepreneurs set out into the unknown, the wise ones do so with at least some anticipation and safeguarding against potential hazards ahead.