A topic I considered for my paper, but later abandoned, was whether your online character (such as in an MMORPG) could be defamed. In certain games, your reputation is quite important and the goodwill you have accumulated in the community can directly affect your ability to enjoy, succeed, and even profit from the game. For example, one could imagine that if you have a reputation for fraud in EVE Online, other players may not want to trade with you or associate with you. Or in Second Life, where you can actually sell virtual property, people might not want to engage in financial transactions with you if you have a reputation of a crook.
So can anything be done if someone defames your online character?
Since a considerable amount of communication in online games is still done through typing, we would probably be dealing with libel. But if voice chat was used, it would be slander.
A libel plaintiff has a cause of action if the words complained of:
1. Are capable of being defamatory
2. Refer to the plaintiff
3. Are published to a third party
a. Malice is presumed upon proof of publication
Thus, the question is, when someone speaks in a defamatory manner towards an online character, are they referring to the plaintiff? I’m unsure what the correct answer to this. On the one hand, the online character is often a different personality than the real person, but on the other hand, it is the plaintiff sitting behind the computer screen playing the game. Can the real person legally be separated from the online character?
I guess the closest non-video game analog of this would be with a pen name for a book. If someone became famous under a pen name, but then later that name was defamed, could the actual author sue?
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Very interesting question. I think the answer is yes, defamation should apply in your example.
When I think about what defamation is meant to protect (reputation), that should be the key. IMO it should be immaterial whether my reputation is created in the gaming world or outside.
Consider these facts:
What if I used a pseudonym in a some sort of club I attended? I develop a rapport with the peers at the club and they generally regard me as a decent guy. Then one day, somebody writes defamatory comments about me (using my pseudonym) and it is circulated among my peers at the club.
I feel like in the above scenario, if I wanted to bring a defamation suit I should be allowed to, despite using a pseudonym. Does it really matter that my peers didn’t know my real name if the comments damaged my reputation there?
Sounds like you had a pretty similar idea to mine, but I like your take on it. There has been some interesting academic writing on the nature and purpose of the characters we play in virtual worlds, and how they relate to us as people. It may depend on the type of player, honestly. Some people use online games as an alternative or replacement social sphere. Some are essentially forced to interact primarily online in order to fulfil their social needs (transgender folks often take advantage of virtual worlds to live out a social life as a member of their true, rather than assigned, gender).
Another way to look at it is that everybody is playing a role, even when interacting in meatspace. When somebody asks “how are you?” we say “fine”, we pretend to like things we don’t to fit in, we change ourselves in dozens of tiny little ways to appeal to the people around us, etc… The face that we present to the world is always something of a construct, so why should a purely digital construct be any different?
Heck, what about celebrities with stage personas that are entirely different than their “true” personality? They built up a reputation being who they aren’t, and yet that is the reputation that suffers when they are defamed.
This is a really neat topic. Good post.
The answer to this question, I think, will most likely rest of whether there is sound policy reasons to consider a virtual character a person in the legal sense. The law, in my opinion, has no problem doing that. One can look to the the Law of Corporations that created the legal fiction of the Corporation. At one point in time, this legal fiction was considered to be ludicrous and beyond comprehension. If there are sound reasons to grant virtual characters a legal personality, the courts will do so as they have done before.
To answer your question, yes I think the fictional person can be separated from the person sitting behind the desk. In a way, then, the person sitting behind the desk can be seen a “director” of the virtual character. This conclusion prompts another set of questions. What about legal liability? Can the real person behind the desk avoid liability by creating a virtual character to commit illegal acts? Will the law treat the the virtual character as simply the alter ego of the person sitting behind the desk?
Interesting post indeed.