Joe Biden will be president after January 20th, 2021 regardless of the Trump campaign raising many doomed-to-fail lawsuits. It is time and has been time – since the President-Elect won each recount since the election was called – to talk about what impact the incoming administration will have.
Sidebar: video games matter, not just as cultural artefacts, but in statistical terms. Estimates of the industry’s contribution to the US economy vary. Still, figures suggest it produced between $40 billion and $90 billion in revenue this year alone. But this ignores its ability to connect people, arguably its most important contribution was allowing people to communicate during a pandemic where hanging out in person carries risks.
Given the industry’s contribution to the economy, as well as its social and cultural importance, I think it’s worthwhile to talk about the incoming president’s policies through this lens. The most significant distinction between Biden and Trump on this subject is their competing views on Section 230 of the Communications Decency Act, which is more interesting than it sounds.
First, a brief overview of what Section 230 does and why it matters: Section 230 protects internet service providers from liability for things people say on their platform, provided they are moderating their service to remove obscene content in “good faith”. This means that if I defamed you online, you wouldn’t be able to sue the site even if they didn’t remove my post in good time. Hang on to the “good faith” part of that last paragraph, though, because it will be important in a minute.
Suffice to say; Trump does not support section 230. He wants Republicans in Congress to scuttle it, calling it a national security issue. Although his criticism came due to #DiaperDon trending on Twitter – he has threatened to veto a $740bn, “must-pass” defence bill unless his demands are met.
Biden has been less vocal. In some of his comments in The New York Times, he called for protections to be taken away in the context of big tech companies. He argues that social media does not do enough to prevent the spread of misinformation. He was telling CNN in an interview that “we should be considering taking away [Facebook’s] exemption”.
Total repeal of the section would be dangerous, not only for the games industry but for the internet. Without the liability protection that comes with it, companies would need to change the way they operate rapidly.
According to the Associated Press, it could go one of two ways. Firstly, platforms might get more restrictive about what content they allow. They may choose to ramp up the amount they moderate and vet user submissions for content that might get them in legal trouble. This would kneecap the internet, especially sites like YouTube, where vetting content on that scale would be logistically impossible.
Secondly, platforms might abandon moderation entirely. Section 230 protects companies that moderated their sites for a reason; before its enactment, companies that moderate content are considered by the courts to have an editorial role. This makes them responsible for illegal content posted by third parties.
The social interaction aspect of gaming, which will be affected by any change is a significant share of the game industry’s success. Newzoo’s Global Gaming Trends Report found for “younger generations, games are replacing social networks as the go-to digital destinations to meet and socialize with friends”, as, especially in the age of Coronavirus, “simple online gaming platforms are seeing unprecedented levels of engagement”.
If the law is revoked, what would change?
“If someone were to make a defamatory comment, for example, posting that content to other game players,” Leora Harpaz, an emeritus professor with Western New England University, postulated, “the gaming company would be liable to the same extent that, for example, Facebook, would be liable for defamation [in the event of section 230 repeal].”
And fighting defamation cases is not cheap. It is possible these companies would have valid defences, but, unlike in the UK where lawyers will often offer no-win, no-fee plans, in America establishing this defence requires paying a lot of cash in attorney’s costs.
You could recoup those fees if you win – and if you make it that far. This leaves games companies, especially smaller ones with fewer resources, with an impossible choice: drastically alter the way their games work or face financial ruin.
“Many videogames would choose to eliminate all social features altogether to reduce the liability exposure,” Eric Goldman, a law professor at Santa Clara University, explained, “and games that couldn’t adequately reduce the risk (because, for example, the social elements are indispensable) might simply disappear altogether.”
In this respect, Biden will be a better president for video games companies than Trump. The industry should be – not necessarily relieved by his victory – but reassured by it. I do not think Joe Biden wants total 230 repeals. But I certainly don’t buy that he will actively pursue it. In Trump’s case, the objective of repealing the law is punishing social media networks for being insufficiently nice about him; for Biden, to induce those networks to moderate their services stringently.
In repealing the law, Trump’s aims are met. In revoking good faith protection for moderating content, Biden’s are not. If the President-Elect does not understand this now, the lawyers in his White House will.