Banned MMO player sues for emotional distress

Posted by Dan on August 24, 2008

Not just any MMO either, but huge goliath Chinese MMO Legend of Mir. A player who was banned (for unstated reasons) sued producer Shanda for 11,000 RMB ($1600 USD) under an emotional distress theory. And just 2 weeks ago, a World of Warcraft player sued The9 to unban his account, who are WoW’s distributor in China, and won, receiving his account, characters, and items back.

If we get coverage of this, we’ll bring it to you, but since it relies on translation of a very minor court case in a foreign country, using a system of laws that we’re not familiar with, there’s not a whole lot of hope for it. What we can do, however, is discuss whether this would have a chance of flying in the U.S. courts. It’s our opinion that it would likely not. It’s difficult to know how an emotional distress tort works in the Chinese court system, but in the U.S., it is a relatively difficult thing to prove.

The below is a hypothetical situation as to what would happen if this case was prosecuted in the U.S. court system:

Depending on whether it is an intentional infliction of emotional distress, or negligent infliction of emotional distress (IIED or NIED), intent is a key factor, something that it is likely that Shanda simply didn’t have. A monolithic company like that does not just intentionally harass its customers. It’s difficult to argue, also that they were recklessly disregarding the plaintiff’s emotional state, since they oversee hundreds of thousands of accounts. Knowing personally any one of them would be difficult, let alone knowing the mental state of the account holder before banning him.

Another factor is whether the conduct was so outrageous or heinous that it would have offended the sensibilities of a reasonable individual. Depending on jurisdiction the factors here change, but common ones include: fiduciary duty, pattern of conduct, and position of defendant’s power over the plaintiff/state of vulnerability of the plaintiff. It’s pretty obvious that Shanda is so far removed from the plaintiff that none of these situations exist.

It is probably self-explanatory, but there must actually be in fact emotional distress. While this is not hard to believe in MMORPG gamers, who become significantly attached to their characters, it does require some sort of medical/psychiatric assessment. This is a tricky ground, where we cannot make an argument here based on the facts; however that also means that it is a fertile defense ground for Shanda to argue that there was none.

Similarly, there must be causation. As any trial lawyer knows, causation is the best way for a defense to win a case, because proving causation can be extraordinarily difficult. In this case, there may be an argument that Shanda’s actions were not the proximate cause of his emotional distress, but rather his own attachment and fragile mental state were. This argument gets slightly bolstered by the fact that hundreds of other accounts are likely banned without these problems. Obviously, in Shanda’s mind, something is different about this plaintiff, which would imply that Shanda was not the cause of his injury.

It’s not likely that a NIED claim will work either. The elements of a NIED claim, similar to a IIED claim, requrie the presence of actual sufffering of serious emotional distress; that was proximately caused by the defendant’s; because the defendant engaged in negligent conduct or willful violation of a statute.

In this type of claim the presence of the actual distress is no different than it is above, neither is causation. The presence of negligent conduct or willful violation of a statute is also rather easy to dismiss: no statute exists that says a MMORPG producer cannot ban players, and given such a wide player base, it’s presumable that there’s zero knowledge of any information that would make Shanda’s action’s negligent. In fact, there would probably be an easier time proving the IIED claim than a NIED claim in this situation.

So what’s the result of all this hypothesizing?  Well, the end result is that we probably are not likely to see lawsuits like this succeeding in the U.S. any time soon. Other jurisdictions, like China, have different rules and procedures that may allow it, but as far as U.S. gamers are concerned: if you’re banned, don’t try to sue over it.

Popularity: unranked [?]