The Estavillo vs Sony case - real rights in a virtual world?

The virtual world community was sucking its collective teeth last week, when it emerged that Sony was being sued for allegedly violating the right to free speech of Erik Estavillo, a 29-year-old gamer who suffers from agoraphobia and obsessive-compulsive disorder. Mr Estavillo alleges that Sony violated his free speech rights when it banned him first from Resistance: Fall of Man, and then from the entire PlayStationNetwork, for what he calls 'trash-talking'.

He's claiming $55,000 damages to cover both the alleged First Amendment violation, and the pain and suffering that he says Sony caused to 'an already disabled plaintiff'. The full story's here at The Escapist.

So far, so frivolous. Not, of course, because Mr Estavillo cites his disabilities: Target made a $6m settlement with the National Federation of the Blind late last year, over the inaccessibility of their site to visually impaired customers. No, rather because First Amendment rights famously don't pertain on private property.

But Annie Lin, in a closer look on Venturebeat, asks "Do you have the right to socialize online?" She notes that if he can persuade the court that PSN qualifies as a 'public forum' - using a legal exception which protects free speech in 'company towns' - Estavillo might be in with a chance.

Annie concludes that how the court views this particular aspect of the suit "will pose interesting and important constitutional implications for products such as Second Life and Facebook, as well as other MMOGs with in-game communities like World of Warcraft, Everquest and EVE Online."

The Sony case is also remarkable for its rarity - despite the massive expansion of the area, there have been relatively few cases in which a gamer sues a virtual world, MMOG or similar. Perhaps the closest parallel is Marc Bragg’s suit against Second Life, in which Bragg claimed that Linden stole his virtual property when they terminated his account.

Generally though, inter-corporate cases are far more frequent. Most cases in the last year or so have been disputes concerning bots, trademarks, and patents – with the occasional allegation of phony blackmail to shake things up.

So unsurprisingly, the Sony-Estavillo case has hit the headlines in the gamer community - partly for its rarity, but also because it taps a widely-held dislike of the kind of behaviours which get a gamer locked out after three prior warnings.

In the many forum threads which discuss the case, it is hard to find a single comment which supports Mr Estavillo in the sea of negative posts - with many commenters making the ‘shoulda read the EULA, huh?’ point.

So it’s worth keeping an eye on the progress of the case. But it's also worth remembering that the vast majority of users actively demand a safe, fair, unthreatening entertainment environment, and are pretty supportive of attempts to provide it.

And, in a week in which Kzero reports that membership of virtual worlds grew by 39% in the second quarter of 2009 to an estimated 579 million, it's clear that getting that bit right could pay dividends.

Kate Williams, eModeration Research Consultant