The ‘Call of Duty’ lawsuit and video game liability

While Meta Platforms is not unaccustomed to being the source of blame, there is also a lawsuit against the makers of video game Call of Duty, owned by Microsoft as of October 2023. As technology has evolved and the realism of games has become incredibly immersive, these war-based games have increasingly been discussed as a source of addiction and normalising of violence.

While this is a US legal issue, the lawsuit has Australian and international repercussions since Call of Duty – like Fortnite and other violent games – is readily available and popular in this country. There is also a burgeoning video game industry with ties to this, and other, war-based games. Indeed, Melbourne’s Sledgehammer Games has been helping make Call of Duty for more than a decade with much of the audio and visual effects for the game generated by the Australian company.

On 10 May, 19 families in Uvalde, sued Meta Platforms, owner of Facebook and Instagram, and Activision Blizzard (a subsidiary of Microsoft), makers of Call of Duty, over allegations the companies bear responsibility for products used by the teenage shooter. They also filed a lawsuit against Daniel Defense, the manufacturer of the AR-style rifle used by 18-year-old Salvador Ramos in the Uvalde shooting, which resulted in the killing of 19 students and two teachers at Robb Elementary School.

According to the lawsuits filed by Josh Koskoff of Koskoff Koskoff & Bieder,  which previously represented the families of victims killed in the 2012 school shooting at Sandy Hook Elementary School in Connecticut, Ramos had played versions of Call of Duty since he was 15, including a version that allowed him to practise with the version of the rifle he later used at the school.

He opened an online account with Daniel Defense just prior to his 18th birthday and purchased the rifle as soon as he could, according to the lawsuit.

“Simultaneously, on Instagram, the shooter was being courted through explicit, aggressive marketing. In addition to hundreds of images depicting and venerating the thrill of combat, Daniel Defense used Instagram to extol the illegal, murderous use of its weapons,” the families’ attorneys said in a statement.

Josh Koskoff, attorney for the families, released a statement saying, “There is a direct line between the conduct of these companies and the Uvalde shooting. This three-headed monster knowingly exposed him to the weapon, conditioned him to see it as a tool to solve his problems and trained him to use it.”

Activision responded that the Uvalde shooting was “horrendous and heartbreaking in every way, and we express our deepest sympathies to the families and communities who remain impacted by this senseless act of violence. Millions of people around the world enjoy video games without turning to horrific acts.”

The lawsuits against Meta and Call of Duty makers are just the latest to allege technology companies play a central role in influencing mass shooters. Families of victims in a May 2022 attack on a Buffalo, New York supermarket sued social media companies including Meta and Instagram.

Amanda Mason is a senior lawyer with Media Arts Lawyers in Sydney. Her particular focus is on defamation, commercial law, disputes and litigation.

She tells LSJ, “One of the more unique breaches of this duty alleged by the plaintiffs, and very specific to this case, is that the Activision Defendants’ continue to use replicas, or near-replicas, of real life assault weapons in the Call of Duty franchise, despite actual or constructive knowledge that multiple mass shooters had been trained on Call of Duty products and committed their assaults with weapons that are the same or similar to those that appear in the Call of Duty franchise.”

“The plaintiffs argue that Call of Duty is a simulation, rather than a game, and has been linked to multiple mass shootings, including the 2012 Sandy Hook Elementary School shooting, asserting that the Activision Defendants ‘knew or should have known that they have contributed substantially to the creation and training of multiple mass shooters…’.”

Precedent for this case

Mason points to cases in the US that have been brought against game developers or publishers, including:

• Dunn et al v Activision Blizzard, Inc et al (filed in 2023), in which the plaintiffs asserted 17 causes of action, a number of which are similar to those asserted in claim against the Activision Defendants by the victims of the Uvalde school shooting, including negligence and products liability in respect of various of the defendants’ game products, one of which was Call of Duty.
• Wilson v Midway Games Incorporated, in which the plaintiff, the mother of a 13 year old boy who was stabbed to death by another 13 year old boy claimed to be obsessed with Mortal Kombat, alleged that the defendant’s design and marketing of Mortal Kombat caused her son’s death. The causes of action included product liability, unfair trade practices and negligent and intentional infliction of emotional distress.
• Smallwood v NCSoft Corporation and NC Interactive, Inc., in which the plaintiff asserted eight causes of action including negligence, gross negligence, unfair and deceptive trade practices and intentional infliction of emotional distress. The plaintiff alleged, among other things, that the defendants failed to warn him of the danger of psychological dependence or addiction from continued play in respect of games, including Lineage II, designed and distributed by the defendants.
• Strickland et al v Sony Corporation of America et al., in which the plaintiffs alleged, among other things, that the publishers of video games, including Grand Theft Auto, were responsible for the deaths of three shooting victims and that the shooter convicted of the murders played the relevant video games prior to the shootings.

Call of Duty outpaces all competitors

Activision Blizzard was acquired by Microsoft in a $US69 billion dollar deal in October last year, defying a move by UK-based regulator, the Competition and Markets Authority (CMA), which had sought to block the deal in April 2023 after raising concerns that Microsoft – the maker of the Xbox gaming console – would dominate the burgeoning cloud gaming market.

The Call of Duty franchise is the best-selling first-person shooter video game series, boasting over 400 million games sold. The most successful games in the franchise include Black Ops, Modern Warfare, and Black Ops Cold War, each selling more than 30 million copies.

Psychologists have argued for and against the proposition that video games cause or exacerbate aggression in players. In April 2000, two studies argued that playing violent video games can increase a person’s aggressive thoughts, feelings and behaviour both in laboratory settings and in actual life, according to research appearing in the April issue of the American Psychological Association’s (APA) Journal of Personality and Social Psychology. The studies surmised “violent video games may be more harmful than violent television and movies because they are interactive, very engrossing and require the player to identify with the aggressor”.

The same argument was made in 2011 by Dr Brock Bastian from University of Queensland’s School of Psychology, who found evidence that playing violent video games leads players to see themselves, and their opponents, as lacking in core human qualities such as warmth, open-mindedness, and intelligence.

“There are good reasons to be concerned: the negative effects of violent video games have been well documented and appear to be more significant than those associated with other forms of violent media,” he said.

On November 2, 2010, the US Supreme Court heard arguments in the case of Schwarzenegger v Entertainment Merchants Association over whether states have the right to restrict freedom of speech by limiting the sale of violent video games to minors. At that time, eight US states had tried to pass legislation to this effect, with all attempts being found unconstitutional by lower courts. In the US, “violent material” has always been seen as protected speech because of its potential to benefit political and societal debate and discussion (in one example provided by a medical study into this concept, they cited photos and combat footage from the Vietnam War that changed public perception of the war).

Social theories are conflicting, with some claims that these games are a form of catharsis, so they allow players to exorcise their aggressive tendencies via a harmless avenue, and others claim they exacerbate violent tendencies in vulnerable players.

A hypothetical  Australian case

Mason explains that if a negligence claim was to be brought in Australia by a victim of a violent crime, or the estate of such a victim, against the publisher of a game, the plaintiff would need to establish:

• that the publisher owed a duty of care to the plaintiff;
• that the publisher breached that duty of care;
• the publisher’s breach of that duty caused the damage suffered by the plaintiff; and
• the damage was not too remote a consequence of the breach of duty.

“Generally, under Australian law, a person is not under any duty to control a second person’s actions in order to prevent them from causing damage to a third person, but such a duty may exist where the second person’s actions could not have occurred but for the first person’s fault or breach of duty,” she says.

“While such a duty may exist, the principle is usually applied in the case of special relationships, such as where the relationship between the first and second person is one of parent and child, teacher/school authority and pupil or prison authority and prisoner and, therefore, it is unclear whether it would be held to apply to the relationship between the publisher and the perpetrator of the violent crime.”