Video games, as a mass media, innovative technology sector, and audiovisual creation tool, raise major legal issues in terms of liability, intellectual property, protection of minors, regulation of use, and combating misinformation.
The absence of a unified legal framework requires increased contractual and regulatory vigilance for all players in the sector in the face of misuse.
A. Video games, an unregulated mass media
Like the internet, video games now enable communication and the formation of online communities that transcend cultural boundaries, bringing with them a whole ecosystem of third-party chat apps, influencers, specialist websites, dedicated forums, and more.
Video games: powerful communication tools
An important element of online multiplayer video games, the capabilities and tools designed to improve communication between players have undergone specific developments. Constantly optimized, several titles now include communication tools that are either directly integrated into the game or linked to its ecosystem through compatible third-party applications such as Discord, Teamspeak, Skype, etc.
Legally, certain video games can therefore be legally classified as online public communication services or even genuine social networks if they allow their player users to create, share, or interact via content (text, sound, images, videos). This is the case for Fortnite, Roblox, Minecraft, and Call of Duty, which include voice chat and direct messaging. A similar argument can be made for games with integrated forums, community chat rooms, or content sharing systems.
These communication tools raise considerable liability issues for publishers, who are subject to the same obligations as social networks and content hosting platforms. The power of federation and emulation revealed by this new type of mass media makes it an important vehicle for the circulation of information, but its lack of regulation opens the door to serious abuses. The use of third-party services (Discord, Teamspeak) adds a layer of legal complexity, particularly with regard to the issue of moderation and the sharing of responsibility between publishers and service providers.
Several examples of the use of video games and their communication tools by terrorist groups have been noted since the 2010s. Amniyat, the intelligence service of the jihadist organization Islamic State, and its branch responsible for clandestine operations, have used messaging and voice communication tools in online video games to communicate with their operators.
Recent years have also been marked by several scandals involving confidential or classified information being revealed on video game forums, unintentionally sparked by the passion and involvement of players.
Video games: tools for illicit propaganda
Video games have also become a major geopolitical influence and a sophisticated propaganda tool. Several examples illustrate this growing instrumentalization. In 2003, Hezbollah’s Central Internet Bureau developed “Special Force,” a game that puts players in the shoes of a Hezbollah fighter battling the Israeli army. This game, described as a “resistance wargame,” recreates real battles from the conflict in southern Lebanon and glorifies “martyrs” through virtual certificates signed by Hassan Nasrallah.
This model has inspired other groups, notably ISIS, which has produced recruitment videos modeled on the aesthetics of franchises such as Call of Duty in order to target a young male audience.
In addition, China wields unprecedented influence over the global gaming ecosystem through giants such as Tencent, owner of Riot Games and Epic Games, and shareholder in Discord. This strategic position raises concerns about the possible exploitation of video games for intelligence purposes. Indeed, access to players’ behavioral data, collected in particular via integrated chats or associated platforms such as Discord or WeChat, could be used for surveillance purposes. At the same time, certain games labeled as “soft power,” such as Honor of Kings, convey a Sinocentric view of history and values, thus contributing to a subtle narrative normalization.
In the Western world, video game blockbusters are not lagging behind in this war of narratives. Licenses such as Call of Duty and Battlefield systematically heroize Western armies, reducing conflicts to a Manichean opposition between “good guys” and “terrorists.” These games also collaborate with arms manufacturers: in 2009, Remington signed a partnership with Activision to integrate its ACR rifle into Modern Warfare 2, in an effort to build loyalty among the next generation of consumers. Furthermore, war is trivialized through simplified representations of its consequences, transforming the act of killing into a thrilling, aestheticized, and visually harmless experience, which implicitly legitimizes violence.
Faced with these abuses, regulators are struggling to impose an effective framework. The legislative uncertainty surrounding the moderation of political content in online games, technological dependence on publishers for access to moderation algorithms and data traceability, and sovereignty issues related to the hegemony of a few major players such as Tencent, Microsoft, and Sony complicate the implementation of robust control mechanisms. This instrumentalization of video games heralds a new era of conflict in which cultural influence and data control are becoming weapons as decisive as conventional arsenals.
Absence of specific legal framework for video games
Video games, although works of the mind, do not benefit from their own legal regime and remain subject to a scattered set of rules: intellectual property, criminal law, consumer law, etc.
As a reminder, video games suffer from a lack of a rigorous legal definition, justified by their constant evolution and increasing complexity. Going beyond a simple classification as software, the vast majority of video game titles developed today also incorporate elements as varied as scenarios, original music, images and voices of professional actors, animated montages or segments of audiovisual works, online communication tools, etc.
Legal disputes have encouraged case law to carry out this gradual process of identifying and classifying video games. The recognition of their status as intellectual works, protectable by copyright subject to eligibility conditions, has transformed the understanding of video games, evolving over several years towards a unitary conception of software.
In 2009, the Court of Cassation rejected this position in favor of a new classification of video games: “a complex work,” in other words, “a creation in which different types of works coexist.” The following are therefore eligible for copyright protection and subject to the various applicable rules: gameplay, level design and other game mechanics, stories, scenarios, dialogues, music, sound effects and voices, character and set images, animations, interfaces, audiovisual content menus[1], names and logos, databases, software elements, graphics engines, and source codes.
Editorial responsibility: the technical and legal response
This lack of a specific framework makes it difficult to manage illegal or harmful content, particularly in terms of propaganda, hate speech, and misinformation. In recent years, there has been a steady increase in the legal and regulatory provisions applicable in this area: the 2004 LCEN framework has now been supplemented by European standards on personal data (GDPR) and platform control obligations (Digital Services Act – DSA).
Only a response combining technical and legal elements appears adequate today. It must be formalized through a combination of elements, similar in this respect to the cybersecurity sector.
The following can therefore be considered cumulatively:
- Technical and/or automated moderation systems. The large number of players has prompted studios to deploy a variety of tools that integrate content filters and banned words via evolving dictionaries, detection of suspicious behavior (spam, harassment, grooming) through interaction analysis, access restrictions through geo-blocking, and age verification.
Many publishers are now optimizing their models using artificial intelligence tools to analyze text, images, and even voice exchanges in real time with lexical filters tailored to the specific characteristics of gaming communities and any jargon associated with certain video game titles.
- Disciplinary control by the publisher. With the help of various contractual documents—end user license agreements (EULAs), ethical codes of conduct, best practices, etc.—publishers can use human resources to control user access, with any breach of obligations subject to temporary or permanent suspension of accounts and their content, in an extrajudicial, immediate, and discretionary manner.
Drafting clauses that give game publishers disciplinary control is a delicate task, as there is a risk that such clauses could be reclassified as unfair terms under the Consumer Code. Read more about our work in this area.
- In-game tools for reporting illegal content. Extension of the legal obligations incumbent on content hosts (provisions of Articles 6 et seq. of the Law on Confidence in the Digital Economy). Similar to social media platforms, several online gaming interfaces now include direct reporting mechanisms for illegal content, which can be supplemented with technical evidence (screenshots, chat logs, audio recordings). Failure to moderate reported content within a reasonable time frame could result in civil and criminal liability for publishers.
- Pooling of resources between private and public actors. Under contractual partnerships, several studios or publishers can offer tools to combat toxic behavior and content, particularly through blacklisting systems. These initiatives can be carried out in conjunction with public or private institutions to detect extreme content relating to areas such as terrorism and radicalization, organized crime, and child sexual abuse.
However, these tools must be chosen with caution and with the assistance of specialized lawyers, given the need to reconcile the means employed with compliance with regulatory standards on privacy and personal data protection (GDPR) and the jurisdictional issues arising from the fact that the servers for most video games are hosted outside the European Union.
Another distinctive feature of the video game sector is that each online game has its own servers, which vary depending on the type of hardware. Each game may have its own internal communication system using different computer languages, making it very difficult for regulatory bodies to monitor and quickly access the accounts and discussions of all online games.
Translated with DeepL.com (free version)
Video games, protection of underage players, and the PEGI system
The law provides for restrictions on the sale and distribution of video games to minors, particularly those containing violent or pornographic content or content that undermines human dignity.
PEGI system. Video game publishers are legally required to provide consumers with information—primarily medical warnings—and to regulate the content of video games in order to protect minors. Failure to do so is punishable by law. It is common for EULAs to be particularly detailed in their description of the product and its conditions of use in order to better limit the publisher’s liability in situations not covered by the latter.
In this context, combining the obligation to provide information and the protection of minors, video game publishers quickly adopted a pan-European video game classification system developed in 2003, based on age categories and specifying certain content offered in video games. Standardizing existing historical systems, it was legally integrated into the French regulatory framework, which provides for criminal penalties of one year and a fine of €15,000 in the event of the provision, display, and advertising to minors of video games containing certain types of content.
A North American classification system called the “ESRB – Entertainment Software Rating Board” uses criteria based on age and content to classify video games. It should be noted that this classification is not legally binding in the United States.
Translated with DeepL.com (free version)
B. Video games: a sector rich in reusable hardware and software
The video game industry is characterized by technical and technological innovation that the rest of society has been able to take advantage of. At a time when the world is embracing artificial intelligence tools, it is clear that their effectiveness relies on the power of these processors and graphics cards, designed and improved by the video game industry.
Controllers and accessories. In fact, there are many examples of inspiration or use of video game hardware and accessories: controllers and control adapters are used in aviation for drones and remote-controlled devices, and Kinect accessories have been deployed as three-dimensional scanning tools. In the military sphere, Valve’s Steam Deck console has been repurposed by the Ukrainian army as a controller for its turrets: its easily modifiable operating system, minimal weight, high computing power, wide range of controls on the controller, and attractive price, which is lower than that of military controllers with the same characteristics, have made it a leading technological tool.
From a legal standpoint, hardware innovations (controllers, virtual reality devices) and software innovations (simulation engines, AI) are protected by intellectual property rights—patents, copyrights, trademarks, etc.—whose reuse in other sectors (health, training, industry) would require the negotiation of appropriate licenses.
The use of gaming peripherals or software in sensitive contexts (drone control, medical devices) raises the question of liability in the event of failure or misuse. Contractual clauses must anticipate these risks.
Translated with DeepL.com (free version)
Video games: professional simulation tools
Long confined to the realm of leisure, video games are now also establishing themselves as a particularly effective constructive simulation tool, used in a variety of professional contexts, ranging from military training and race car driver training to fire management, medical preparation, and team coordination training in crisis situations.
Several forms of simulation can be used:
- Virtual simulation using conventional computer tools or dedicated simulation tools, providing a more immersive scenario and greater physical engagement for trainees;
- Instrumented simulation in which the people, equipment, and environment are real; only the effects of weapons are simulated;
- Augmented simulation, in virtual reality or even through metaverses, offering an enhanced immersive and interactive experience, allowing users to be projected into the heart of complex situations, in highly customizable environments, sometimes interconnected remotely;
- Finally, the use of video games as they are for training purposes, favored by reduced training costs, discretion regarding the necessary infrastructure, multiple functionalities, and the unique ergonomics of its peripherals.
Find a more detailed presentation of the types of simulations in the latest issue of Cf2R.
Ownership of rights to the technologies developed depends on the contractual framework between the various parties involved (developers, publishers, service providers). It is essential to draw up specific rights transfer agreements to secure the secondary exploitation of innovations.
C. Video games: a software tool for creating hyperrealistic audiovisual content
The surprising realism of certain video games, mainly simulation games coupled with contemporary recording software, has facilitated the rise of audiovisual content derived from video games for humorous or political purposes.
Mods and misinformation. Content created from video games (clips, machinimas, deepfakes) can be used to spread false information, particularly in the context of war or propaganda. These additions to the game, whether official or unofficial, in the form of mods, add-ons, DLC, or other forms, provide a wide range of ready-to-use 3D models representing equipment and environments that can be displayed and used for disinformation purposes. In the latest developments in the Israeli-Palestinian conflict, several posts on social media of video game footage from the hyper-realistic war simulation games “Arma III” and “Digital Combat Simulator” have distorted the reality of the fighting. At the start of the war in Ukraine, a fighter pilot known as “Ghost of Kyiv,” famous for videos showing him destroying several Russian aircraft in flight, turned out to be a real clip from the video game, whose image quality had been deliberately reduced to make it look more credible.
In such circumstances, the publisher’s liability would normally appear to be limited. However, proof of negligence or a lack of vigilance with regard to the unauthorized use of content from its video game could render it liable under civil and criminal law.
Mods and intellectual property. Publishers’ tolerance or acceptance of players’ edited and customized content also raises several legal issues, particularly regarding the copyright of these derivative works. In summary, when these creations are eligible for protection under intellectual property law, they can be classified as composite works that can only be used with the publisher’s permission, which is generally governed by particularly protective end-user license agreements (EULAs). Failure to obtain permission may result in prosecution for copyright infringement. See our publications detailing these aspects.
D. Video games and monetization systems: an infestable economic sector
Video gaming, initially purely recreational, is transforming into a regulated economic activity. In this context, practices and risks associated with gambling are emerging, including the risk of addiction, cheating, fraud, and money laundering.
Video games and money laundering. On this last point, certain video game operations have also provided a means of financing through money laundering activities, in particular through the purchase/resale of dematerialized games, virtual objects, and even NFTs within the game, through the use of virtual currencies or even cryptocurrencies, through the remuneration of influencers, or through the sale of virtual items or even NFTs within the game. reselling dematerialized games, virtual objects, and even NFTs within the game, through the use of virtual currencies and even cryptocurrencies, through the remuneration of influencers or video games with the purchase of subscriptions or virtual gifts, or even through the direct sale of pirated copies of games.
This distortion of the use of video game monetization systems has legal repercussions, prompting the French Ministry of Finance to take an interest in the financial ecosystem of video games.
In 2019, Valve, publisher of the game CS:GO, was forced to temporarily disable skin trading in certain countries after links to illegal gambling networks were discovered.
Faced with the purchase of V-Bucks and Robux via stolen credit cards, Epic Games and Roblox have strengthened their systems for detecting suspicious purchases, working with authorities to prosecute illegal resellers.
The European Directive of May 30, 2018, on combating money laundering recently reiterated this point, stating that “Although virtual currencies can often be used as a means of payment, they could also be used for other purposes and find wider applications, such as serving as a medium of exchange, investment instruments, stores of value, or being used in online casinos.”
Esports and money laundering risks. In 2016, lawmakers anticipated the risks associated with the rise of video game competitions and the risk that the continued organization of online competitions could become a new channel for money laundering, similar to casino platforms.
As a precautionary measure, the rules applicable to the organization of esports competitions were incorporated into the Internal Security Code in Articles L321-8 et seq. Approved and declared competitions require the physical presence of players in order to consider the possibility of winnings or cash prizes, which are also regulated. This is specifically to prevent the risk of money laundering mechanisms through exclusively online competitions. The text also specifies that the possibility of organizing such competitions does not include “taking bets,” which remain subject to the prohibition on lotteries..
