Hate and Hate Speech: What Challenges are There for Games Companies?

At the end of September, the Federal Ministry of the Interior and Community (BMI) held an exchange with platform operators, NGOs and authorities on how to deal with hate and hate speech on the internet. In the second quarter, 6,226 possible criminal offences were reported to the central reporting office for criminal content on the internet (ZMI BKA) - a doubling within a year. However, this is probably only the tip of the iceberg because not all cases are reported. For this reason, the aim of this expert discussion was to consider together what the reasons are for the increase in hate and hate speech and what can be done about it. For the first time, the games industry was also invited to this dialogue and explained the challenges for games companies in combating hate and hate speech.

At the end of September, the Federal Ministry of the Interior and Community (BMI) held an exchange with platform operators, NGOs and authorities on how to deal with hate and hate speech on the internet. In the second quarter, 6,226 possible criminal offences were reported to the central reporting office for criminal content on the internet (ZMI BKA) - a doubling within a year. However, this is probably only the tip of the iceberg because not all cases are reported. For this reason, the aim of this expert discussion was to consider together what the reasons are for the increase in hate and hate speech and what can be done about it. For the first time, the games industry was also invited to this dialogue and explained the challenges for games companies in combating hate and hate speech.

As a rule, games companies do not wait until criminal offences have been committed to combat hate and hate speech, but are already taking consistent action against hate and hate speech below the criminal offence threshold with community management, word filters and reporting options. The idea behind this is that a game and the community forums must not become toxic so that players feel comfortable in a game and want to come back. Individual haters or trolls can poison the climate in a game and ultimately the entire community so quickly that it is necessary to react at an early stage. The problem here is that insulting or at least impolite comments that are not yet punishable by law are also removed. Companies can use community guidelines and netiquette to delete individual comments and, in the event of repeated offences, even exclude players with reference to digital domiciliary rights. However, whether the house rules have been violated can be disputed in individual cases and there is always a certain risk of legal action and therefore costs for games providers who take action against hate speech. Larger companies are often better able to manage these costs than smaller ones. In this respect, each company must decide on a case-by-case basis, depending on its individual capabilities, whether - also in order not to alienate individual players - to prioritise freedom of expression in cases of doubt or to take uncompromising action against hate and hate speech with financial commitment.

The effects of DSA

Since the EU's Digital Services Act (DSA) came into force and its German implementation in the Digital Services Act in May 2024, games companies that are online platforms also have new reporting obligations in the event of punishable expressions. A distinction must always be made between expressions made in the game, i.e. via chat or acts and gestures made by the game character, or outside the game, for example via TeamSpeak or in forums and on other platforms. Technically, the provider can only take measures for its own games, but not for third-party platforms. The DSA therefore distinguishes between intermediary services and so-called hosting services as well as online platforms or very large online platforms (VLOPs). In an exchange in a workshop by game between association members and the Digital Services Coordinator (DSC), which is coordinating the implementation of the new platform liability, it became clear that games can generally be categorised as intermediary services and in particular hosting services, meaning that they do not have to offer reporting mechanisms. However, as soon as they enable the upload of user-generated content (UGC) in addition to chat, games companies as providers of online platforms must set up and maintain procedures that enable users to report illegal content (Article 16 DSA). Each games company must therefore check whether and in which game UGC can be uploaded and whether it may have to provide a reporting function as an online platform. This is already the case in many games - even without a legal requirement.

However, when it comes to criminal charges and requests for information from police departments and other investigative authorities, games companies often face a dilemma, which became clear at a webinar by game in July. On the one hand, games companies must and want to fulfil the requests and legal obligations to provide information while on the other hand they have a legal obligation to protect the data of their players. Law enforcement authorities are authorised to access data in accordance with the German Code of Criminal Procedure (StPO) and the Telecommunications Digital Services Data Protection Act (TDDDG). However, the formal requirements of the request for information must be checked by the games companies by a responsible specialist. There is often uncertainty as to which specific data must be disclosed and how the requests of the law enforcement authorities are to be interpreted, as the authorities often do not specify the exact legal basis and use the general investigation clause, which is too general. In addition, games providers must ensure that the requests are legally correct and do not go beyond what is necessary. If the request is incorrect or if requirements are not met, the respective company must decide whether they are either in breach of data protection law and must expect civil or regulatory sanctions or whether they will face fines under the TDDDG and administrative and coercive measures under the StPO if they refuse to provide information. Here, assistance from the Federal Criminal Police Office (BKA) for the police forces of the federal states would be helpful in order to prevent such dilemmas.

In practice, depending on the number of users of a game, the economic and technical requirements of a provider, the possibilities and communication risks in a game and the climate of a community, there is probably no standard solution and many games companies have already found customised solutions and procedures. It can be observed that hate and hate speech are usually not expressed directly in the game, but in its environment, i.e. in forums, Let's Plays or other platforms. Although providers only have limited technical options here, they can exert an indirect influence via their community standards or make their commitment to an open and respectful community even more visible via initiatives such as Hier spiel Vielfalt.

Samantha Brock is part of the Legal and Regulatory Department and, as a Legal Counsel, she oversees the legal affairs and all legal matters of the association.

Henner Hentsch oversees as Director Legal & Regulatory Affairs all legal and regulatory issues at game. Additionally he is managing director of VHG – Verwertungsgesellschaft für die Hersteller von Games and also a professor for copyright and media law at TH Köln. Before he joined game in January 2016 he has represented VG Media, a collecting society for broadcasters and press publishers and he has been working at the German Bundestag.

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