Hewson - Exploring Vicarious Liability to Remedy the E Too

Volume I I I– Summer 2022

Exploring Vicarious Liability to

Remedy the #E-Too Movement

Eloise Hewson

Abstract

The esports, or competitive video gaming, industry is an

exciting area of economic and cultural growth. Gaming can

facilitate interpersonal connection, shared problem-solving,

and creativity. Players may purchase a game, watch a streamer

play it online, join an online gaming community, attend a

tournament, compete professionally, or find employment in

game development or a related field. The gaming industry

generates enormous economic value and employs tens of

thousands of people in the UK alone. However, the esports

sector does not extend its benefits equally. Women are

regularly verbally harassed in video games, countless women

have been groped at esports events, women have been raped by

professional players, underage fans have been groomed. Abuse

is endemic to online gaming communities.

This article argues that it is necessary to hold esports teams

vicariously liable for the harms caused by professional players

in order to remedy abuse in online games. The first section

proposes that serious instances of abuse committed by

professional esports players have normalised misogyny in

gaming communities and proposes that non-tortious solutions

are inadequate. The second section considers civil legal options

and argues that, whilst individual players could be held liable

in tort, the lack of means of most abusers renders direct claims

worthless. Finally, section three shows that esports teams could

be held vicariously liable for abuse if three doctrinal

ambiguities were clarified. It is concluded that these

ambiguities should be resolved in order to compel esports

teams to compensate victims and lessen abuse by improving

social norms in online gaming communities.

York Law Review

‘this is the INTERNET folks… there are no laws here, at least

not clearly defined ones’

1 The Problem

1.1. Introduction

The sexualised abuse of women is endemic throughout the internet

and is especially acute in online gaming communities; over 60 per

cent of female gamers are harassed,

and employees

and underage

fans

repeatedly report being abused by

professionals employed in the

esports

industry. Esports misogyny rises tirelessly in a toxic cycle of

Anonymous online comment quoted in Keats Citron, ‘Law’s Expressive Value in

Combating Cyber Gender Harassment’ (2009) 108(3) Michigan Law Review 373,

401.

See for example Emma Jane, “‘Back to the Kitchen, Cunt”: Speaking the

Unspeakable About Online Misogyny’ (2014) 28(4) Journal of Media and Cultural

Studies 558, 560–563; Keats Citron (n 1) 374, 380–384.

Jenny McBean and Seb Martin, ‘Bryter Female Gamer Survey’ (Bryter 2020) 20

<https://pages.bryter-research.co.uk/hubfs/003-FGS-1603/Bryter%20-

%20Female%20Gamers%20Survey%202020.pdf> accessed 25 May 2022 (survey of

1001 female and 1003 male participants who play video games at least monthly,

commissioned by Women in Games charity.) See further Women in Games, ‘Bryter X

Women in Games’ <https://www.womeningames.org/project/diversity-guide/>

accessed 25 May 2022.

Dom Sacco, ‘Method back on track after almost imploding in wake of abuse

scandal’ (EsportsNews, 26 June 2020) <https://esports-

news.co.uk/2020/06/26/method-players-partners-step-away-over-abuse-scandal/>

accessed 25 May 2022; Method, ‘Statement on Co-CEO: An Update from Method’

<https://www.method.gg/statement-on-co-ceo> accessed 25 May 2022; Cecilia

D’Anastasio, ‘Inside The Culture Of Sexism at Riot Games’ (Kotaku, 7 August 2018)

<https://kotaku.com/inside-the-culture-of-sexism-at-riot-games-1828165483>

accessed 25 May 2022.

Cecilia D’Anastasio, ‘When Your Favorite Streamer Turns Out to Be a Creep (Or

Worse)’ (Kotaku, 19 February 2019) <https://kotaku.com/when-your-favorite-

streamer-turns-out-to-be-a-creep-or-1832734851> accessed 25 May 2022.

For definitions of esports, see Omar Ruvalcaba and others, ‘Women’s Experiences

in eSports: Gendered Differences in Peer and Spectator Feedback During Competitive

Video Game Play’ (2018) 42(4) Journal of Sports and Social Issues 295, 296 (survey

Volume I I I– Summer 2022

public outcry and continuing abuse.

The 2012 #1reasonwhy

movement, in which female game creators shared experiences of

industry discrimination on Twitter, exposed widespread sexual

harassment and led some to anticipate genuine positive change.

Less

than two years later, a female developer was accused of trading sex for

positive game reviews, sparking a culture war between progressive

industry-members, who saw the rumours as an unsubstantiated smear

campaign, and anti-feminist trolls. Women were given actionable

death and rape threats.

In 2019, news outlets proclaimed that there

was a newfound determination for equality

after the #MeToo

movement prompted women to expose sector-wide abuse in the games

of 61 female and 31 male esports viewers recruited from university psychology

department and observation of 39 female and 48 male Twitch streamers); Michael

Ward and Alexander Harmon, ‘ESport Superstars’ (2019) 20(8) Journal of Sports

Economics 987, 987 (collection of community-compiled earnings data relating to

24,000 players); John Holden and Thomas Baker, ‘The Econtractor? Defining the

Esports Employment Relationship’ (2019) 56(2) American Business Law Journal 391,

393; Lindsey Darvin, Ryan Vooris and Tara Mahoney, ‘The Playing Experiences of

Esports Participants: An Analysis of Treatment Discrimination and Hostility in Esport

Environments’ (2020) 2(1) Journal of Athlete Development 36, (survey of 471

participants, 77% of whom were male, recruited via Reddit).

Jane (n 2) 566.

Mary Hamilton, ‘#1reasonwhy: The Hashtag That Exposed Games Industry Sexism’

The Guardian (London, 28 November 2012)

<https://www.theguardian.com/technology/gamesblog/2012/nov/28/games-industry-

sexism-on-twitter> accessed 25 May 2022.

Caitlin Dewey, ‘The Only Guide to Gamergate You Will Ever Need to Read’

Washington Post (14 October 2014) <https://www.washingtonpost.com/news/the-

intersect/wp/2014/10/14/the-only-guide-to-gamergate-you-will-ever-need-to-read/>

accessed 25 May 2022; Nick Wingfield, ‘Feminist Critics of Video Games Facing

Threats in “GamerGate” Campaign’ New York Times (New York, 15 October 2014)

<https://www.nytimes.com/2014/10/16/technology/gamergate-women-video-game-

threats-anita-sarkeesian.html> accessed 20 May 2021; Editorial, ‘The Guardian View

on Gamergate: When Hatred Escaped’ The Guardian (London, 20 August 2019)

<https://www.theguardian.com/commentisfree/2019/aug/20/the-guardian-view-on-

gamergate-when-hatred-escaped> accessed 25 May 2022.

Lucy Orr, ‘“This Industry Has a Problem with Abuse”: Dealing with Gaming’s

#MeToo Moment’ The Guardian (London, 17 September 2019)

<https://www.theguardian.com/games/2019/sep/17/gaming-metoo-moment-

harassment-women-in-games> accessed 25 May 2022.

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industry by sharing their experiences online.

Only a short while later,

over three days in June 2020, hundreds of women publicly alleged that

they had been assaulted or harassed by esports professionals.

Many

assumed that improvements were inevitable following June 2020,

but the events of the past decade show that proactive change is

necessary to break cycles of abuse in esports.

This article argues that esports teams should be held vicariously liable

for the torts of their players in order to lessen abuse in gaming

communities. This first section proposes that the esports gender

harassment problem is caused by the formation of toxic communities

around abusive high-level players and shows that non-tortious

solutions to this problem are inadequate. Section two shows that

abusive players could be held liable in tort, but that claims are

undermined by the lack of financial resources of individual abusers.

Finally, section three argues that esports teams could be held

vicariously liable for the torts of their players, but that three doctrinal

ambiguities currently frustrate claims. It is concluded that the

ambiguities in the doctrine should be resolved in order to compel

teams to compensate victims and lessen abuse in wider gaming

communities.

Laurie Penny, ‘Gaming’s #MeToo Moment and the Tyranny of Male Fragility’

(Wired, 9 June 2019) <https://www.wired.com/story/videogames-industry-metoo-

moment-male-fragility/> accessed 25 May 2022; Orr (n 10); John Holden, Thomas

Baker and Marc Edelman, ‘The #E-Too Movement: Fighting Back Against Sexual

Harassment in Electronic Sports’ (2019) 52 Ariz St L J 1, 12.

Shannon Liao, ‘Gaming Companies Are Responding to a Wave of Sexual

Misconduct Allegations’ CNN Business (New York, 25 June 2020)

<https://edition.cnn.com/2020/06/25/tech/gaming-metoo-twitch/index.html> accessed

25 May 2022; Wes Fenlon, ‘Women in the Games Industry Speak Out Over Sexual

Assault and Harassment’ (PCGamer, June 2020) <https://www.pcgamer.com/women-

in-the-games-industry-speak-out-over-sexual-assault-and-harassment/> accessed 25

May 2022.

Taylor Lorenz and Kellen Browning, ‘Dozens of Women in Gaming Speak Out

About Sexism and Harassment’ New York Times (New York, 23 June 2020)

<https://www.nytimes.com/2020/06/23/style/women-gaming-streaming-harassment-

sexism-twitch.html> accessed 25 May 2022; Darvin, Vooris and Mahoney (n 6) 44.

Volume I I I– Summer 2022

1.2. Limitations

Two limitations as to scope should be noted. First, although online

abuse often occurs across borders,

this article will focus on English

law. This approach is appropriate because many recent allegations of

abuse have involved English players, potentially engaging English

law.

Internationality limitations will be discussed further as each

solution is analysed.

Second, although this piece unavoidably

disproportionately discusses male-on-female abuse,

esports gender

abuse is taken to mean abuse relating to gender, rather than merely

that affecting women. It should particularly be noted that male-on-

male abuse is frequently downplayed

and often invokes gender

norms in similarly harmful ways.

The lack of high-quality research into online abuse provides an

additional limitation. Jane proposes that online harassment is

understudied because it is vulgar and falls outside of ordinary

scholarly discourse.

Perhaps more pertinently, journalists and

academics who write about online gender abuse are often subjected to

harassment;

one researcher witnessed debates about her ‘rapeability’

See for example Steven Messner, ‘WoW’s Top Competitive Raid Guild Is

Collapsing Amid Multiple Accusations of Sexual Assault and Abuse’ (PCGamer,

June 2020) <https://www.pcgamer.com/wows-top-competitive-raid-guild-is-

collapsing-amid-multiple-accusations-of-sexual-assault-and-abuse/> accessed 25 May

2022.

See for example Messner (n 14); Cale Michael, ‘Evil Geniuses Cut Ties with Dota

2 Caster GranDGranT Amid Sexual Harassment Allegations’ (DotEsports, 22 June

2020) <https://dotesports.com/dota-2/news/evil-geniuses-cuts-ties-with-dota-2-caster-

grandgrant-amid-sexual-harassment-allegations> accessed 25 May 2022.

See ss 2.3 and 3.3.

Jane (n 2) 559.

Martha Chamallas, ‘Vicarious Liability in Torts: The Sex Exception’ (2013) 48(1)

Valparaiso U L Rev 133, 164.

Jane (n 2) 565.

ibid 558.

ibid 561–563.

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circulating online following the publication of her work.

As such, it

appears that the proliferation of online abuse itself limits research

engagement. Somewhat ironically, online abuse may also be under-

researched because it is trivialised. Keats Citron argues that cyber

harassment is considered juvenile ‘locker-room talk’ affecting only

‘overly sensitive complainers’.

Online abuse is dismissed as a social

problem

and infantilised as an issue to be solved by parents.

One

New York Times journalist, after describing women being driven from

their homes during gamergate, jovially concluded that progress was

indicated by Lara Croft’s ‘more modestly proportioned’ breasts.

A final limitation is imposed by the lack of research analysing the

esports industry.

What little research has been conducted is

sometimes compromised by commercial interests

and poor

participant selection. Whilst one empirical study of gamers present on

attracted overwhelmingly male responses,

recruitment

within a university psychology department attracted majority female

participants,

casting doubt on the extent to which small-scale studies

can represent diverse online communities. To account for unavoidable

ibid 562.

Keats Citron (n 1) 375, 395–396.

Liao (n 12); Paula Giliker, ‘“Tailoring” the Close Connection Test for Sexual

Abuse Victims: Vicarious Liability in the Court of Appeal’ (University of Bristol Law

School Blog, 26 April 2021) <https://legalresearch.blogs.bris.ac.uk/2021/04/tailoring-

the-close-connection-test-for-sexual-abuse-victims-vicarious-liability-in-the-court-of-

appeal/> accessed 25 May 2022.

Digital, Culture, Media and Sport Select Committee, Government Response to the

Digital, Culture, Media and Sport Select Committee Report on Immersive and

Addictive Technologies (CP 241, 8 June 2020) (Government response to DCMS) para

32.

Wingfield (n 9).

Holden and Baker (n 6) 394.

ibid 398.

Darvin L, Vooris R and Mahoney T, ‘The Playing Experiences Of Esports

Participants: An Analysis Of Treatment Discrimination And Hostility In Esport

Environments’ (2020) 2(1) Journal of Athlete Development 36.

Darvin, Vooris and Mahoney (n 6) 42.

Ruvalcaba and others (n 6) 301, 304.

Volume I I I– Summer 2022

source deficiencies, multiple references are used to verify statistics

where possible and methods are described briefly in the first citation

of empirical sources.

1.3. The importance of lessening abuse

Research on esports gender harassment is important because of the

significant effect that abuse can have on victims’ lives. Cyber

harassment impacts the day-to-day activities of those affected and

leads to social withdrawal.

Women affected by threats specifying an

‘exact time of attack’ have described feelings of terror consuming

their lives.

Harassment may also trigger mental health conditions;

one woman assaulted by an esports player was recently admitted to a

psychiatric ward.

Victims of cyber harassment also bear the financial

losses of seeking treatment and obscuring their online and physical

activities from abusers.

As Keats Citron has argued, whilst victims bear the most significant

effect of harassment, abuse also harms wider online communities.

The Government has acknowledged that video games have positive

cultural, social, and educational effects

which are denied to women

excluded from online spaces.

Almost half of one-thousand female

gamers interviewed in 2020 stated that abuse ruined the online gaming

experience.

Almost a third of women

also reported being forced to

Keats Citron (n 1) 385.

Dewey (n 9); Jane (n 2) 563; Wingfield (n 9) discussing a threatened mass shooting.

Keats Citron (n 1) 390.

D’Anastasio (n 5).

Holden, Baker and Edelman (n 11) 21–22.

Keats Citron (n 1) 375, 390.

Government Response to DCMS (n 25) para 2. See also Department of Culture,

Media and Sport, Report on Immersive and Addictive Technologies (HC 2017-19,

1846) (DCMS Report) para 1.

DCMS Report (n 38) paras 175–176.

McBean and Martin (n 3) 22.

ibid 21.

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attempt to ‘pass’ as men online by avoiding voice-communications,

using gender-neutral pseudonyms, and mimicking male behaviour.

Women are also prevented from forming online relationships and fully

engaging with games; a significantly lower percentage of women than

men play against random opponents or friends met online,

and fewer

women would class themselves as ‘proper’ or ‘hardcore’ gamers,

indicating that women are unable to share in the positive effects of

online gaming.

Harassment in esports can also cause negative economic

consequences. The esports industry generates roughly $700M per

year,

attracting more viewers

and offering higher prize pools than

most traditional major sports.

In the UK, the games sector generates

£1.52B gross economic value

and employs 22,000 people.

However, harassment lowers commercial

and governmental

investment. Women are also unable to benefit equally from sector

growth due to the exclusionary effects of abuse.

Equal amounts of

men and women play games,

but only 12 per cent of game

developers are female

and there are no female players in the vast

majority of high-level esports teams.

Female employees are

Keats Citron (n 1) 375, 387.

McBean and Martin (n 3) 5.

ibid 10.

Ruvalcaba and others (n 6) 296; Ward and Harmon (n 6) 987.

Ruvalcaba and others (n 6) 296; Ward and Harmon (n 6) 987; Darvin, Vooris and

Mahoney (n 6) 40.

Holden and Baker (n 6) 392; Holden, Baker and Edelman (n 11) 6–7; Darvin,

Vooris and Mahoney (n 6) 40.

DCMS Report (n 38) para 157.

Government Response to DCMS (n 25) para 3.

Holden, Baker, and Edelman (n 11) 7–8, 22. See also for example Sacco (n 4).

DCMS Report (n 38) para 163; Government Response to DCMS (n 25) para 28.

Keats Citron (n 1) 375, 386; Government Response to DCMS (n 25) para 36.

DCMS Report (n 38) para 174; McBean and Martin (n 3) 5.

DCMS Report (n 38) para 174.

See for example Overwatch League, ‘Players’ (Overwatch League 2021)

<https://overwatchleague.com/en-us/players> accessed 25 May 2022.

Volume I I I– Summer 2022

encouraged to refuse to work at studios with sexist cultures,

impeding equal career development and frustrating change.

Many

women have also abandoned esports careers following harassment by

powerful male colleagues.

Lessening abuse could promote both

economic growth and equal access to profit.

1.4. Industry breakdown

Gaming communities form where players communicate via messages

or voice-chat either in-game or via third party platforms. Discord,

which allows users to communicate via text or voice in chatroom-style

forums,

is used by over 250 million gamers.

Twitch allows players

to live stream their gameplay and talk to viewers via a chat window.

Many professional players stream during their downtime,

and most

esports tournaments are broadcast over Twitch.

High-level players

Orr (n 10).

Keats Citron (n 1) 394.

Dewey (n 9); D’Anastasio (n 4); Holden, Baker and Edelman (n 11) 3–4;

D’Anastasio (n 5); Michael (n 15).

Discord <https://discord.com/> accessed 25 May 2022.

Kaylee Fagan, ‘Everything You Need to Know About Discord, the App That Over

250 Million Gamers Around the World Are Using to Talk to Each Other’ (Insider, 12

October 2020) <https://www.businessinsider.com/how-to-use-discord-the-messaging-

app-for-gamers-2018-5?r=US&IR=T> accessed 25 May 2022.

Twitch <https://www.twitch.tv/> accessed 25 May 2022; Ruvalcaba and others (n

6) 296–297.

Damian Alonzo, ‘What It’s Like Being an Overwatch League Pro’ (PCGamer,

February 2016) <https://www.pcgamer.com/uk/what-its-like-being-an-overwatch-

league-pro/> accessed 25 May 2022; Hunter Bayliss, ‘Not Just a Game: The

Employment Status and Collective Bargaining Rights of Professional ESports

Players’ (2016) 22 Washington and Lee Journal of Civil Rights and Social Justice

359, 376–377.

Bayliss (n 62) 384; Jacob Wolf, ‘Overwatch League to Be Streamed on Twitch.tv in

Two-Year, $90 Million Deal’ (ESPN, 9 January 2018)

<https://www.espn.co.uk/esports/story/_/id/22015103/overwatch-league-broadcast-

twitchtv-two-year-90-million-deal> accessed 25 May 2022; Archimtiros, ‘Mythic

Castle Nathria Race to World First Livestreams and Raid Coverage’ (WoWHead, 15

December 2020) <https://www.wowhead.com/news/mythic-castle-nathria-race-to-

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can build large followings on Twitch, with some streams attracting

hundreds of thousands of viewers.

Online gaming communities also

coalesce around platforms such as YouTube, Reddit, and 4chan.

It is

also notable that, in gaming communities as elsewhere, Twitter has

developed a role in facilitating large-scale movements such as the

June 2020 abuse allegations.

Over a quarter of gamers watch competitive esports tournaments.

Professional players are often attached to teams, many of which begin

as small grassroots groups.

Teams often expand, incorporate, and

begin to manage income and streaming activity.

The largest esports

teams operate across multiple games and attract significant external

investment.

Some esports competitions are organised informally by

the teams involved.

However, many tournaments are managed by a

separate league corporation, which may be independent from, or

affiliated with, the original developers of the game. For example

world-first-livestreams-and-raid-coverage-319847> accessed 25 May 2022; Max

Miceli, ‘LCS Posts Strongest Twitch Viewership of 2021 Spring Split in Week 3’

(DotEsports, 22 February 2021) <https://dotesports.com/league-of-legends/news/lcs-

posts-strongest-twitch-viewership-of-2021-spring-split-in-week-3> accessed 25 May

2022.

Holden and Baker (n 6) 399–400. See also Mark Johnson and Jamie Woodcock,

‘The Impacts of Livestreaming and Twitch.tv on the Video Game Industry’ (2018)

41(5) Media, Culture and Society 670, 671 (collection of semi-structured interviews

with over 100 professional and semi-professional streamers, demographic information

not provided); McBean and Martin (n 3) 16.

Holden, Baker and Edelman (n 11) 19–20.

See for example allegations mentioned in Sacco (n 4); Michael (n 15).

McBean and Martin (n 3) 17.

See for example EchoGuild

<https://twitter.com/EchoGuild?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ct

wgr%5Eauthor> accessed 25 May 2022; WoWProgress

<https://www.wowprogress.com/> accessed 25 May 2022.

See for example Method <https://www.method.gg/> accessed 25 May 2022.

See for example Complexity <https://complexity.gg/> accessed 25 May 2022;

Steven Rondina, ‘Who Owns Every Team in the Overwatch League?’ (Win, 24

February 2020) <https://win.gg/news/3890/who-owns-every-team-in-the-overwatch-

league-question-mark> accessed 25 May 2022.

Archimtiros (n 63).

Volume I I I– Summer 2022

Valve, the developers of Counter Strike: Global Operations, have no

relationship with the teams playing their game or the league

organising tournaments.

By contrast Activision Blizzard, the

developers of Overwatch, wholly own the Overwatch League and

manage teams closely.

This article mainly analyses abuse in World of Warcraft, a massively

multiplayer online game in which players complete quests and fight

monsters in an open-world environment,

and Overwatch, a first-

person shooter in which teams of six compete to finish map-based

objectives.

These games have been selected because, despite being

developed by the same studio,

they exemplify the differences

between organised and grassroots esports management. Whilst

Activision Blizzard manage the Overwatch League for commercial

gain,

World of Warcraft’s Race to World First competition has been

developed by teams inside the community

and is largely

unacknowledged by game developers.

Holden and Baker (n 6) 406–407.

ibid 408, 428; Overwatch League, ‘Rules of Competition and Code of Conduct’

(Overwatch League, 2 February 2019) para 5.16(a)(ii)

<https://overwatchleague.com/en-us/news/21568602/rules-of-competition-and-code-

of-conduct> accessed 25 May 2022. For further examples, see Bayliss (n 62) 364–

366; Holden and Baker (n 6) 404–405.

World of Warcraft <https://worldofwarcraft.com/en-gb/start> accessed 25 May

2022; Steven Messner and Heather Newman, ‘World of Warcraft Beginner’s Guide:

How to Get into WoW in Time for Shadowlands’ (PCGamer, October 2020)

<https://www.pcgamer.com/uk/how-to-get-into-world-of-warcraft/> accessed 25 May

2022.

Overwatch <https://playoverwatch.com/en-us/about/> accessed 25 May 2022.

Activision Blizzard <https://activisionblizzard.com/home> accessed 25 May 2022.

Holden and Baker (n 6) 428. See also Johnson and Woodcock (n 64) 673.

Archimtiros (n 63).

Preach Gaming, ‘Castle Nathria Roundtable - With Complexity Limit and Echo!’

(10 January 2021) 54.10–55.00 <https://www.youtube.com/watch?v=IR2I4Cw-

wH8&ab_channel=PreachGaming> accessed 25 May 2022.

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1.5. Causes of esports gender abuse

Numerous studies have found that, whilst women and men experience

similar levels of abuse in online games,

the type of abuse

encountered varies in severity between the sexes.

Whilst men

experience more in-game criticism and swearing, women face much

higher levels of demeaning and discriminatory abuse.

Female

players’ mistakes are amplified,

they are frequently told that they are

worse players than men in the same rank,

and they are entirely

excluded from games twice as often as men.

Female gamers are also

sexually harassed and sent unsolicited sexual pictures a

disproportionate amount

in what has been described by one female

streamer as a ‘gross lust-fest’.

Women are ultimately threatened with

sexual violence and rape far more often than men.

Rather than being a novel phenomenon, online gender abuse is a

modern incarnation of a ‘much older discursive tradition’ which holds

women out as inferior beings existing only to pleasure men.

Low

levels of gender diversity in gaming has nurtured a hegemonic culture

hostile to non-traditional players;

as games have attracted an

increasingly diverse audience, friction has been created in a subculture

where misogyny traditionally ran unchecked.

Men are notably more

McBean and Martin (n 3) 20; Ruvalcaba and others (n 6) 302, 306.

See further Keats Citron (n 1) 374–375.

McBean and Martin (n 3) 20; Darvin, Vooris and Mahoney (n 6) 42–43, 49.

DCMS Report (n 38) para 46.

Keats Citron (n 1) 380; Cecilia D’Anastasio, ‘Twitch Confronts Its Role in

Streaming’s #MeToo Reckoning’ (Wired, 26 June 2020)

<https://www.wired.com/story/twitch-streaming-metoo-reckoning-sexual-

misconduct-allegations/> accessed 25 May 2022.

McBean and Martin (n 3) 20.

ibid.

D’Anastasio (n 84).

Keats Citron (n 1) 380, 389; McBean and Martin (n 3) 20.

Jane (n 2) 565–566.

Holden, Baker and Edelman (n 11) 8–9; Darvin, Vooris and Mahoney (n 6) 38–39,

41.

Wingfield (n 9); Dewey (n 9); Editorial, ‘The Guardian View on Gamergate: When

Volume I I I– Summer 2022

abusive than women in online games,

and significantly less able to

recognise discrimination and intervene where it happens to others.

Anonymous gaming spaces allow male players to engage with abusive

discourse without fear of reprisal.

Arguably the most significant cause of gender-based harassment in

esports is the normalisation of abuse by high-level players. Sexual

comments are directed at female streamers ten times as often as

males,

at an average of at least one comment every two minutes.

However, there is no difference in the prevalence of sexualised

comments posted to male and female streamers’ chats overall,

suggesting that for each time a female streamer is abused in her own

stream, another woman is abused in a male streamer’s chat. Jane

explains that misogyny escalates online because men compete to

formulate the most offensive insults,

a phenomenon likely

exacerbated by the perceived proximity between male esports players

and their Twitch fans.

MethodJosh, a prominent esports player and

streamer, allegedly developed a micro-community on Twitch and

Discord in which girls were referred to as ‘whores’ and ‘thots’ and

interrogated for their age, height, weight, and relationship status.

100

Some argue that MethodJosh encouraged sexism in his community to

attract views from male gamers who were unsuccessful with

Hatred Escaped’ (n 9); Holden, Baker and Edelman (n 11) 8–9; Kenzie Gordon

quoted in Lorenz and Browning (n 13).

McBean and Martin (n 3) 20; Darvin, Vooris and Mahoney (n 6) 42–43, 49.

Darvin, Vooris and Mahoney (n 6) 42–43 and 49.

Holden, Baker and Edelman (n 11) 8–9.

Ruvalcaba and others (n 6) 305.

ibid 307.

ibid.

Jane (n 2) 560–561.

Noah Smith, ‘“It’s Not as Awesome as People Imagine”: Esports Players Say

“Dream Job” is More Than Fun and Games’ Washington Post (13 December 2018)

<https://www.washingtonpost.com/sports/2018/12/13/its-not-awesome-people-

imagine-esports-players-say-dream-job-is-more-than-fun-games/> accessed 25 May

2022.

100

D’Anastasio (n 5).

York Law Review

women.

101

MethodJosh’s most popular Twitch clips show him

entertaining fans by explaining in detail how to take intimate

pictures

102

and then calling young female fans live on stream to ask for

sex.

103

1.6. Examples of abuse

Example allegations will now be discussed in order to demonstrate the

patterns of abuse that proposed solutions must address. It is

acknowledged that many reports are unsubstantiated, and the accuracy

of individual allegations is therefore not relied upon.

104

Gamertags

will be used rather than full names in order to provide both privacy

and readability. It is unavoidably difficult to provide a comprehensive

account of abuse in esports, as women have reported feeling unable to

make public allegations and many stories inevitably fail to attract

media attention.

105

Of the over one-hundred allegations made in June

2020 alone, claims ranged from gender-based discrimination, to

inappropriate sexualised behaviour, to physical assault.

106

Many

women allege that players made repeated sexual advances online or in

person or touched them without consent at esports functions.

107

Three

particularly serious allegations are outlined below.

In 2018, Overwatch League player DreamKazper was suspended from

competition following allegations of sexual misconduct with

101

ibid.

102

Kungozai Methodjosh Highlights and Compilations, ‘MethodJosh Most Viewed

Twitch Clips of All Time Compilation! Truly the Best of MethodJosh’ (19 February

2019) (MethodJosh Clips) 04.35–05.48

<https://www.youtube.com/watch?v=opI523KMJj4&ab_channel=KungozaiMethodjo

shHighlightsandCompilations> accessed 25 May 2022.

103

ibid 07.28–08.27, 08.45–09.14 (content warning: sexual harassment.)

104

Note however admissions in Lorenz and Browning (n 13); Fenlon (n 12).

105

See for example Liao (n 12).

106

ibid; Lorenz and Browning (n 13); Messner (n 14).

107

See for example Michael (n 15).

Volume I I I– Summer 2022

minors.

108

DreamKazper, aged twenty-one, was accused of asking for

nude pictures from fourteen- and fifteen-year-old fans.

109

It was

further alleged that the player purchased plane tickets so that an

underage fan could visit him and demanded nude photographs as

‘payment’ when she refused to stay.

110

In 2019, Elvine, a popular World of Warcraft player, was caught by an

FBI child abuse operation after asking an agent posing as a fourteen-

year-old girl to meet up for sex.

111

Elvine was known to be sexually

aggressive with online fans and multiple sources alleged that he made

inappropriate advances at conventions.

112

One woman claimed that

Elvine pressured her into his hotel room at a convention, made sexual

advances for an hour, grabbing her when she attempted to leave, and

only released her when a friend replied to an ‘SOS message’.

113

MethodJosh has been recorded on stream categorising his computer

files into ‘kinda creepy’, ‘ban from Twitch’, and ‘probably a prison

sentence’.

114

Shortly before June 2020, the player told his fans to

‘enjoy the ride’ figuring out that ‘this all isn’t a joke and I’m serious

and need help.’

115

In June 2020 MethodJosh, a member of World of

108

Julia Alexander, ‘Overwatch League Player Fired After Sexual Misconduct

Allegations’ (Polygon, 9 April 2018)

<https://www.polygon.com/2018/4/8/17213638/overwatch-league-suspends-player-

jonathan-dreamkazper-sanchez> accessed 25 May 2022; Robert Paul, ‘Full Benefits,

6-Figure Salaries, 401Ks and Nutritionists - 2 Professionals Reveal What it’s Really

Like to Be Paid to Play Video Games for a Living’ (Insider, 18 April 2018)

<https://www.businessinsider.com/what-its-like-to-play-in-the-overwatch-league-

2018-4?r=US&IR=T> accessed 25 May 2022.

109

Cecilia D’Anastasio, ‘How Two Underage Girls Say an Overwatch Pro Took

Advantage of Them’ (Kotaku, 11 April 2018) <https://kotaku.com/how-two-

underaged-girls-say-an-overwatch-pro-took-advan-1825185594> accessed 25 May

2022. See also D’Anastasio (n 5).

110

D’Anastasio (n 109). See also D’Anastasio (n 5).

111

D’Anastasio (n 5).

112

ibid.

113

ibid.

114

MethodJosh Clips (n 102) 09.14–10.00.

115

ibid 10.00–10.30.

York Law Review

Warcraft’s top competitive team,

116

was accused of soliciting illegal

images, grooming, sexual harassment, and rape.

117

MethodJosh

allegedly distributed sexual pictures of ex-girlfriends and fans.

118

Multiple fans aged fourteen and fifteen reported being told that they

were ‘the perfect age’ before being groomed and asked for sex.

119

One

female streamer alleged that MethodJosh raped her when she visited

his house to stream with him.

120

In summary, abuse typically includes: verbal sexual harassment; the

sharing of intimate pictures; sexual assault or rape; and the grooming

of underage fans. It is important to address this abuse both because of

its effect on victims and in order to prevent the normalisation of

harassment in wider online communities.

1.7. The inadequacy of non-tortious solutions

Tort law is proposed as the most fruitful source of redress for esports

gender abuse in this article because of the impracticability of

alternative solutions. Although abuse may sometimes constitute a

criminal offence,

121

investigations into esports players have proved

difficult to substantiate in practice

122

and this difficulty is compounded

116

Messner (n 14).

117

Sacco (n 4).

118

ibid.

119

ibid; Messner (n 14).

120

Messner (n 14).

121

See for example the Sexual Offences Act 2003 ss 1, 2, 3, 9, 10, 14, 15 and 15A,

the Protection of Children Act 1978 ss 1 and 2(3), and the Coroners and Justice Act

2009 s 62.

122

Messner (n 14) discussing the allegations against MethodJosh; D’Anastasio (n 84)

discussing the allegations against Elvine. See further Office for National Statistics,

‘Sexual offences in England and Wales Overview: Year Ending March 2020’ (18

March 2021)

<https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/s

exualoffencesinenglandandwalesoverview/march2020> accessed 25 May 2022.

Volume I I I– Summer 2022

by court backlogs in the UK

123

and the systemic trivialisation of cyber

harassment.

124

Abuse could arguably be lessened should communications platforms

employ more extensive monitoring. However, Twitch’s own

transparency report shows that only 2 per cent of reports of ‘hateful

conduct, sexual harassment, and harassment’ were acted upon in

2020.

125

Even where companies attempt to tackle issues, abusers often

avoid detection by using ephemeral platforms such as Snapchat

126

and

‘fragmenting’ their digital presence across multiple platforms.

127

Internal sanctions, another potentially useful solution, are routinely

under-applied by esports teams. Players frequently boycott companies

seen to support victims

128

and intimidate women by leaking private

information and issuing actionable death and rape threats in order to

suppress initial complaints.

129

Whilst some retaliation is explicitly

dangerous, much more is insidiously doubtful. The rape myth that

many women raise complaints as revenge

130

is doggedly repeated,

131

123

Haroon Siddique, ‘Crown Court Backlog Has Reached “Crisis Levels”, Report

Warns’ The Guardian (London, 30 March 2021)

<https://www.theguardian.com/law/2021/mar/30/crown-court-backlog-has-reached-

crisis-levels-report-warns> accessed 25 May 2022; Caelainn Barr and Alexandra

Topping, ‘Fewer Than One in 60 Rape Cases Lead to Charge in England and Wales’

The Guardian (London, 23 May 2021)

<https://www.theguardian.com/society/2021/may/23/fewer-than-one-in-60-cases-

lead-to-charge-in-england-and-wales> accessed 25 May 2022.

124

Keats Citron (n 1) 397, 402–403.

125

Twitch, Transparency Report 2020 (2 March 2021) Reports and Enforcements

section <https://www.twitch.tv/p/en/legal/transparency-report/> accessed 25 May

2022.

126

D’Anastasio (n 5).

127

See discussion of Elvine in D’Anastasio (n 5).

128

Holden, Baker and Edelman (n 11) 24–25. See also Kenzie Gordon quoted in

Lorenz and Browning (n 13).

129

Keats Citron (n 1) 385; Penny (n 11); Dewey (n 9); Jane (n 2) 562–563; Wingfield

(n 9).

130

Genevieve Waterhouse, Ali Reynolds and Vincent Egan, ‘Myths and Legends: The

Reality of Rape Offences Reported to a UK Police Force’ (2016) 8 The European

York Law Review

creating a hostile environment in which victims are less able to speak

out.

Pervasive sexism inside esports teams also undermines internal

sanctions. As noted by the Court of Appeal in Gravil, there is also an

‘obvious temptation’ for sports teams to ignore abuse in order to retain

capable players.

132

Victims are often humiliated and disbelieved

during internal investigations in close communities, as leaders prefer

the accounts of favoured members over those of complainants.

133

It is

hardly surprising that Method failed to discipline MethodJosh

adequately; Sasha Stevens, a Method co-CEO, has also been found to

have manipulated power dynamics in order to make unwanted sexual

advances towards female employees.

134

When Stevens’ conduct was

reported to the team the employees affected were threatened with legal

action.

135

In light of these failings, the next section investigates civil

claims as an additional method of redress.

2 The problem with direct tortious claims

2.1. Establishing liability

Abuse in esports is a serious and pervasive issue which cannot be

remedied effectively by the criminal law, platform monitoring, or

internal sanctions. This section shows that direct tortious claims

against abusive teams and players are also insufficient methods of

Journal of Psychology Applied to Legal Context 1, 2.

131

See for example Dom Sacco, ‘Finding the Courage to Speak Out About

Harassment in Esports: Opinion & List of UK-Focused Accusations’ (EsportsNews, 3

July 2020) <https://esports-news.co.uk/2020/07/03/finding-courage-speak-out-about-

harassment/> accessed 25 May 2022 discussing those who distort the truth.

132

Gravil v Carroll [2008] EWCA Civ 689, [2008] 6 WLUK 425 [26] (Lord Clarke

MR).

133

Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA

Civ 356, [2021] 4 WLR 42 [16]–[18] (Davies LJ).

134

Method (n 4); Messner (n 14) discussing AnnieFuchsia and Swebliss’ allegations.

135

ibid.

Volume I I I– Summer 2022

redress. First, it is shown that direct tortious claims against esports

teams are unlikely to succeed; whilst teams may negligently inflict

harm by employing abusive players,

136

it will often prove prohibitively

difficult to demonstrate breach of duty of care. It is then argued that

claims against individual players could succeed, principally in trespass

to the person and wilful infringement of personal safety, which

remedy the direct and indirect infliction of harm respectively.

137

However, it is concluded that claims against individual players would

be worthless due to the lack of financial means of many abusers.

Turning firstly to direct claims in negligence, esports employers have

a duty to provide a safe working environment, potentially establishing

team liability where a player abuses a fellow employee.

138

Teams may

also have wider duties to fans, as companies who create risk by

choosing to engage dangerous employees act negligently.

139

However,

team liability in negligence is likely frustrated by the difficulty of

proving that employers have acted below the standard of the

reasonable esports team.

140

Defendants will not be held liable where

their inadequate employment practices are common in the sector;

141

EXE, it was considered acceptable for a school to hire a known child

sex offender, as DBS checks were uncommon at the time of

employment.

142

Most esports teams do not screen players thoroughly

or investigate allegations of abuse closely, thus rendering lax

136

Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, [2003] 3 All ER 932

[7] (Hale LJ).

137

Wong (n 136) [7] (Hale LJ).

138

Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 (HL) 87–88 (Maugham LJ).

139

Haynes v Harwood [1935] 1 KB 146 (CA) 153–153 (Greer LJ); Home Office v

Dorset Yacht Co Ltd [1970] AC 1004 (HL) 1027 (Reid LJ), 1037–1038 (Morris LJ);

Mattis v Pollock (t/a Flamingos Nightclub) [2003] EWCA Civ 887, [2003] 1 WLR

2158 [33] (Judge LJ).

140

Nettleship v Weston [1971] 2 QB 691 (CA) 699 (Lord Denning MR).

141

Maga v Birmingham Roman Catholic Archdiocese Trustees [2010] EWCA Civ

256, [2010] 1 WLR 1441 [65] (Lord Neuberger MR).

142

EXE v Governors of the Royal Naval School [2020] EWHC 596 (QB), [2020] 3

WLUK 214 [1], [144], [147], [155] (Griffiths J).

York Law Review

employment practices sufficient.

143

Further, Martha Chamallas and

Philip Morgan agree that it is difficult for complainants to gather

sufficient information to demonstrate that employers failed to take

necessary precautions.

144

Whilst a breach may be established where a

team encourages

145

or fails to remedy

146

abuse which they have been

made aware of, most claims in negligence against esports teams are

likely to fail.

Should an esports team be found to have breached a duty of care,

claims are reasonably likely to satisfy the remaining elements of

negligence. Cause in fact may be established where a player’s

employment has exposed them to the complainant, as but for the

negligent recruitment the abuse would not have taken place.

147

As the

independent action of a third party employee, sexual abuse will only

be foreseeable where it is very likely to occur.

148

However, liability

for serious abuse may be imposed where the tortfeasor’s actions are

somewhat less foreseeable,

149

and Chamallas has argued that, since

#metoo, workplace sexual abuse has become inherently more

foreseeable.

150

Whilst the breach of duty requirement is the sole

element likely to frustrate claims, it imposes a significant barrier to

direct team liability.

143

See for example Maddy Myers, ‘How Pro Gamers Live Now: Curfews, Personal

Chefs, and All of it on Camera’ (Kotaku, 21 June 2018) <https://kotaku.com/how-pro-

gamers-live-now-curfews-personal-chefs-and-a-1827017564> accessed 25 May 2022;

Messner (n 14).

144

Phillip Morgan, ‘Distorting Vicarious Liability’ (2011) 74(6) MLR 932, 945;

Chamallas (n 18) 153.

145

Mattis (n 139) [33] (Judge LJ).

146

Maga (n 141) [65]–[67], [74] (Lord Neuberger MR).

147

See Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1

QB 428 (CA).

148

Dorset Yacht (n 139) 1030 (Reid LJ).

149

Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12, [2004]

1 WLR 1273 [21], [25] (Nicholls LJ).

150

Martha Chamallas, ‘Will Tort Law Have its #MeToo Moment?’ (2018) Ohio State

Public Law Working Paper 456, 31.

Volume I I I– Summer 2022

Tortious claims brought against individual players are more likely to

succeed. Claimants have frequently successfully claimed for sexual

assault under trespass to the person.

151

Battery is direct

152

and non-

consensual

153

touching

154

with intent to bring about physical

contact.

155

Any touch beyond that which is generally accepted in

everyday life can constitute a battery,

156

and as such much of the

physical abuse allegedly committed by esports players could engage

this tort. Unlawful physical contact may also constitute assault if

apprehended immediately beforehand.

157

Rape may also constitute

false imprisonment,

158

which is defined as unlawful restraint

159

with

intent to deprive the complainant of their liberty.

160

False

imprisonment was proved in Lawson, where the claimant had been

‘constrained by the apprehension of violence’ over three days,

161

but

may not warrant additional damages where the only deprivation of

liberty is the assault itself.

162

Esports players may also be liable in the tort of wilful infringement of

151

See for example Lawson v Glaves-Smith (Dawes Executor) [2006] EWHC 2865

(QB), [2006] 11 WLUK 300; Haringey LBC v FZO [2020] EWCA Civ 180, [2020] 2

WLUK 190; B v Cager [2021] EWHC 540 (QB), [2021] 3 WLUK 99; Barry

Congregation (n 133). See also Nikki Godden, ‘Claims in Tort for Rape: A Valuable

Remedy or Damaging Strategy?’ (2011) 22(2) King’s Law Journal 157; Phillip

Morgan, ‘Vicarious Liability and the Beautiful Game - Liability for Professional and

Amateur Footballers?’ (2018) 38 LS 242, 244.

152

Wong (n 136) [7] (Hale LJ).

153

Collins v Wilcock [1984] 1 WLR 1172 (HC) 1777–1778 (Goff LJ); Re F (Mental

Patient: Sterilisation) [1990] 2 AC 1 (HL) 72–73 (Goff LJ).

154

Collins (n 153) 1777 (Goff LJ).

155

Letang v Cooper [1965] 1 QB 232 (CA) 239 (Lord Denning MR); Wilson v

Pringle [1987] QB 237 (CA) 249 (Croom-Johnson LJ).

156

Collins (n 153) 1777–1778 (Goff LJ); Re F (n 153) 72–73 (Goff LJ).

157

Collins (n 153) 1777 (Goff LJ).

158

Godden (n 151) 161.

159

Collins (n 153) 1777 (Goff LJ).

160

Iqbal v Prison Officers Association [2009] EWCA Civ 1312, [2010] QB 732 [72]

(Lord Neuberger MR).

161

Lawson (n 151) [110] (Eady J).

162

Cager (n 151) [36] (Johnson J).

York Law Review

the right to personal safety, described from here as the tort in

Rhodes.

163

The tort in Rhodes is engaged by harmful non-direct

conduct, such as verbal harassment, directed at the claimant with

intent to cause severe distress and resulting in a recognised psychiatric

illness.

164

In C v WH, it was obvious that grooming and sexual abuse

would cause harm to the vulnerable claimant, engaging the tort in

Rhodes

165

and suggesting that esports players who sexually manipulate

young fans may also be held liable under this tort.

Abuse alleged in the esports sector may engage a number of additional

torts. Civil proceedings could be brought for statutory harassment

166

where a player has abused another on at least two occasions in a way

designed to cause distress.

167

As held in AMP, the sharing of sexual

images without consent can establish liability for statutory

harassment.

168

Sharing private images will also engage the tort of

misuse of private information if the claimant’s interest in

confidentiality outweighs the defendant’s interests in publication,

169

is invariably the case where sexual images have been shared.

170

summary, civil claims may be available following sexual assault, rape,

grooming, verbal sexual harassment, and the sharing of intimate

pictures, potentially remedying all common patterns of abuse seen in

the esports sector.

163

OPO v Rhodes [2015] UKSC 32, [2016] AC 219.

164

ibid [88] (Lady Hale DP and Toulson LJ).

165

C v WH [2015] EWHC 2687, [2015] 9 WLUK 449 [89] (Nelson J).

166

Protection from Harassment Act 1997 ss 1 and 3.

167

Dowson v Chief Constable of Northumbria [2010] EWHC 2612 (QB), [2010] 10

WLUK 459 [142] (Simon J).

168

AMP v Persons Unknown [2011] EWHC 3454 (TCC), [2011] 12 WLUK 641 [44]

(Ramsey J)

169

Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457

[134] [137] (Hope LJ).

170

AMP (n 168) [17] [32] (Ramsey J). See further Copyright, Designs and Patents Act

1988 s 85.

Volume I I I– Summer 2022

2.2. Usefulness of direct tortious claims

Civil claims cannot entirely replace the sanctions previously

discussed. Platform monitoring could stop harm before it occurs.

171

Industry sanctions are cost-effective methods of influencing online

norms.

172

Criminal penalties can protect wider communities

173

and

accurately reflect the severity of abuse.

174

Further, claims in tort may

have a comparatively lower deterrent effect than other sanctions,

especially where tortfeasors are unable to pay compensation

personally.

175

It is therefore important to remedy failings in all

solutions discussed in order to lessen abuse in esports. However, civil

claims can provide useful additional remedies when used alongside

other solutions.

176

As Godden has argued, using civil claims as an

addition to, rather than replacement for, criminal complaints is

unproblematic.

177

Paula Giliker noted in 2017 that many civil sexual

abuse claims are preceded by criminal complaints in practice,

178

trend which has continued in recent years.

179

Bringing both criminal

and civil cases can also benefit claimants, as where convictions are

171

See s 1.7.

172

See s 1.7.

173

Ellen Bublick, ‘Tort Suits Filed by Rape and Sexual Assault Victims in Civil

Courts: Lessons for Courts, Classrooms and Constituencies’ (2006) 59(1) SMU L Rev

55, 75.

174

Godden (n 151) 162.

175

Chamallas (n 18) 154.

176

See discussion in Wong (n 136) [16] (Hale LJ).

177

Godden (n 151) 159, 178.

178

Paula Giliker, ‘A Revolution in Vicarious Liability: Lister, the Catholic Child

Welfare Society Case and Beyond’ in Worthington, Robertson and Virgo (eds),

Revolution and Evolution in Private Law (Hart Publishing 2017) available at

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3016347> accessed 25 May

2022.

179

JXJ v Province of Great Britain of the Institute of Brothers of the Christian

Schools [2020] EWHC 1914 (QB), [2020] 7 WLUK 293 [4] (Chamberlain J); EXE (n

142) [24]–[25] (Griffiths J); Haringey LBC (n 151) [4] (McCombe LJ) citing FZO v

Adams [2018] EWHC 3584, [2018] WLUK 750 [3] (Cutts J); Barry Congregation (n

133) [8] (Davies LJ); Cager (n 151) [23] (Johnson J).

York Law Review

secured they may be used as evidence in civil trials turning on

identical facts.

180

Tortious claims can benefit claimants in ways that other solutions

cannot. Whilst compensation orders may be issued following criminal

claims,

181

these are unsuitable in complex sexual abuse cases.

182

Compensation may also be provided by the Criminal Injuries

Compensation Authority (CICA).

183

However, complainants may

prefer tortious remedies, which demand compensation directly from

abusers, over claiming through CICA, which draws from public

funds.

184

Further, as awareness of the extent of the harm caused by

sexual abuse has improved, civil financial awards have become

significantly larger than CICA payouts.

185

Recent civil rape claimants

have been awarded £62,000

186

and £240,337,

187

and claims following

the sexual assault of minors have attracted damages of £87,748

188

and

£1,112,390

189

in recognition of the complex psychiatric problems

caused by abuse. A recent claim for grooming under the tort in Rhodes

also attracted significant damages of £51,370.

190

It should be

acknowledged that awards of high damages may perpetuate the myth

that women fabricate claims for financial benefit,

191

but this

consideration should not prevent victims from fully recovering their

losses. Whilst awards made for the misuse of private information are

180

Civil Evidence Act 1968 ss 11(1) and 11(2). See also JXJ (n 179) [35]

(Chamberlain J).

181

Power of Criminal Courts (Sentencing) Act 2000 s 130.

182

Giliker (n 178) 5–6.

183

Criminal Injuries Compensation Act 1995 s 1(1).

184

Godden (n 151) 174. See further Giliker (n 178) 6.

185

Godden (n 151) 171.

186

Barry Congregation (n 133) [1] (Davies LJ).

187

Lawson (n 241) [140] (Eady J).

188

Cager (n 151) [43] (Johnson J).

189

Haringey LBC (n 151) [2] (McCombe LJ).

190

C v WH (n 165) [94] (Nelson J).

191

Godden (n 151) 173.

Volume I I I– Summer 2022

typically lower,

192

valuable injunctions may be issued to prevent the

wider dissemination of private photographs.

193

Tortious claims may also allow claimants to achieve a sense of justice

by confronting their abusers in court. It should be noted that claimants

may face intrusive questioning in civil trials which could cause

additional distress.

194

For example, the claimant in Haringey LBC was

asked to discuss intimate details of his relationship with his current

partner,

195

and the recent contraceptive medical history of the claimant

in C v WH was presented in court.

196

However, some argue that

aggrieved parties

197

can benefit from reversing power dynamics by

exposing abuse in court.

198

The appeal of civil claims will inevitably

vary between claimants, but tortious liability could seemingly usefully

remedy the financial and emotional harm caused by abuse in the

esports sector.

2.3. Feasibility of claims against individual players

As previously established, claims brought directly against esports

teams in negligence are likely to fail, whereas claims brought against

individual players are likely to succeed. It is argued in this section

that, whilst tortious claims against individual players are broadly

feasible, such actions will often be worthless due to the lack of

financial means of most abusers.

Neither the international nature of esports abuse, nor claimant

anonymity concerns, should render tortious claims against players

192

See for example Campbell (n 169) [10] (Nicholls LJ).

193

AMP (n 168) [11] (Ramsey J).

194

Bublick (n 173) 76–77; Godden (n 151) 177–178; as noted in JXJ (n 179) [55]

(Chamberlain J).

195

Haringey LBC (n 151) [31] (McCombe LJ) citing FZO (n 179) [97] (Cutts J).

196

C v WH (n 165) [40]–[41] (Nelson J).

197

Morgan (n 151) 260.

198

Godden (n 151) 179–180.

York Law Review

unfeasible. Despite the cross-border nature of online abuse, so long as

a claimant is inside their home jurisdiction when receiving harmful

communications they may elect to sue in the courts of their own

country

199

and cases will be decided under domestic law.

200

These

rules also apply wherever the claimant and defendant share a

nationality, regardless of where abuse occurs.

201

As detailed earlier,

claimants may be reluctant to make complaints due to fear of

receiving further online abuse from retaliatory players.

202

Tortious

claims remain feasible because courts have the power to grant

anonymity orders to claimants whose own interests, for example in

safety and privacy, outweigh the public interest in open justice,

203

and

to victims of sexual offences.

204

Anonymity orders have been widely

used in recent civil sexual abuse

205

and harassment

206

cases.

It is often more feasible to prove sexual abuse allegations under the

civil, rather than criminal, law. The ‘obvious advantage of the civil

law’ is that it is easier to prove a case on the balance of probabilities

199

Regulation (EC) 1215/2012 of 12 December 2012 on jurisdiction and the

recognition and enforcement of judgments in civil and commercial matters (recast)

[2012] OJ L351/1 (Brussels I (Recast)) arts 5(1) and 7(2); Case C-21/76

Handelskwekerij G J Bier BV v Mines de Potasse d’Alsace SA [1976] ECR I–01735

[15], [19]. Note that application in the UK post-Brexit remains unclear.

200

Regulation (EC) 864/2007 of 11 July 2007 on the law applicable to non-

contractual obligations [2007] OJ L199/40 (Rome II) art 4(1). See also art 1(2)(g)

relating to privacy claims. See The Law Applicable to Contractual Obligations and

Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019 for

continuing effect post-Brexit.

201

Brussels I (Recast) (n 289) art 4(1); Rome II (n 290) art 4(2).

202

See s 1.7.

203

Civil Procedure Rules 1998 in Coulson LJ, The White Book 2021 (Sweet &

Maxwell 2021) R 39.2(1) and R 39.2(4); XXX v Camden LBC [2020] EWCA Civ

1468, [2020] 4 WLR 165 [24] (Dingemans LJ).

204

Sexual Offences (Amendment) Act 1992 ss 1(1) and 1(2); Cager (n 151) [2]

(Johnson J).

205

See for example Maga (n 141); C v WH (n 165); EXE (n 232); Haringey LBC (n

151); Barry Congregation (n 133); Cager (n 151).

206

AMP (n 168) [2], [46] (Ramsey J).

Volume I I I– Summer 2022

than beyond reasonable doubt.

207

This benefit is, admittedly,

somewhat undermined by the higher ‘intermediate’ standard of proof

sometimes incorrectly employed where criminal conduct is alleged in

civil courts.

208

The House of Lords have clarified that the seriousness

of a claim does not raise the civil standard of proof unless the conduct

alleged is inherently unlikely,

209

but the Lords’ decision sits uneasily

with recent cases such as C v WH in which a rape allegation was

dismissed on the basis that it was ‘very serious’

210

in spite of the

finding that the defendant groomed and sexually assaulted the

claimant over a number of years,

211

rendering rape entirely plausible.

Regardless of whether an intermediate standard of proof is incorrectly

employed in practice, civil claims remain somewhat easier to prove

than criminal cases.

Civil cases also have the advantage of being distanced from the rape

myths which undermine the criminal process. Whilst rape is ‘loaded

with gender-based assumptions’, trespass to the person is not an

inherently sexual claim, potentially weakening misogynistic

connotations.

212

The judge in EXE expressly noted that lack of

violence did not necessarily indicate consent,

213

dispelling the real

rape myth which could have impeded criminal charges.

214

It should

however be remembered that judges must refer to the tortious claim

being brought, rather than merely referring to rape,

215

in order to

avoid transposing rape myths into the civil law.

216

207

Godden (n 151) 167.

208

ibid 169–170.

209

Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35, [2009] 1 AC

11 [70], [72] (Hale LJ).

210

C v WH (n 165) [74] (Nelson J).

211

ibid [69]–[70] (Nelson J).

212

Godden (n 151) 161–162.

213

EXE (n 142) [118] (Griffiths J).

214

Waterhouse, Reynolds and Egan (n 130) 3, 7–8.

215

See for example Barry Congregation (n 133) [1]–[2] (Davies LJ).

216

Godden (n 151) 161–163.

York Law Review

It is acknowledged that the elements of some tortious claims are

harder to make out than corresponding criminal offences. First,

whereas children cannot consent to sex in the criminal law,

217

consent

is a defence to trespass to the person even where victims are under

sixteen.

218

It is plainly arguable that a child’s consent should not be

recognised in the civil law;

219

in EXE, the underage claimant was

blamed for ‘taking the initiative’

220

in a judgment incompatible with

both the criminal law and general common sense. The consent of a

child who has been groomed thankfully remains invalid.

221

Second,

whilst criminal harassment and grooming offences are not result-

dependant,

222

the tort in Rhodes is only engaged where a claimant

suffers a recognised psychiatric illness.

223

Sexual harassment is

therefore not actionable in tort following mere emotional distress,

potentially indicating that the civil law continues to underrepresent

the severity of gendered harms.

224

Whilst these flaws will somewhat

undermine the feasibility of tortious claims, civil remedies likely

remain feasible for most victims of esports abuse.

Although tortious claims for abuse in the esports sector are broadly

feasible, direct claims against players will often be worthless due to

the precarious finances of most abusers. Numerous authors have

demonstrated that sexual abusers are frequently unable to satisfy

judgments.

225

Esports players are especially unlikely to have the

financial means to pay compensation; whilst successful players can

attain high salaries and prizes,

226

the vast majority of professionals

217

Sexual Offences Act 2003 ss 5, 6, 7, 8, 9 and 10.

218

EXE (n 232) [75], [124] (Griffiths J).

219

ibid [76] (Griffiths J).

220

ibid [90]–[95], [120], [122] (Griffiths J).

221

Haringey LBC (n 151) [126]–[130] (McCombe LJ). See also Cager (n 151) [28]

(Johnson J).

222

Protection from Harassment Act 1997 s 1; Sexual Offences Act 2003 ss 14 and 15.

223

OPO (n 163) [73] (Lady Hale DP and Toulson LJ).

224

See further Keats Citron (n 1) 392–393.

225

Godden (n 151) 174; Chamallas (n 18) 136.

226

Jerome Heath, ‘The Biggest Prize Money Winners in Esports History’

(DotEsports, 11 March 2021) <https://dotesports.com/general/news/top-earning-

Volume I I I– Summer 2022

make very little money from online gaming.

227

The average esports

player earns around $6,000 per year,

228

and low rewards are

compounded by the high attrition rate in the sector.

229

Players’

earnings typically peak as teenagers

230

and only a fifth of professional

careers last over two years.

231

Lack of means may force complainants

to bring cases against tortfeasors’ employers through vicarious

liability.

232

Such actions are not exclusive with direct tortious claims.

The next section examines the availability of vicarious liability in the

esports sector in order to establish whether claimants could access

remedies from solvent defendants.

3 Vicarious liability

3.1. Introduction to vicarious liability

Vicarious liability allows a claimant to sue an employer for a tort

committed by their employee, and is established under a two stage

test.

233

First, it must be demonstrated that there is a relationship akin

to employment between the defendant and the tortfeasor.

234

It is

argued here that esports employment often satisfies this test, as

players work for employers rather than acting as independent

contractors. In practice, esports players may be employed by both

teams, who manage rosters and funding, and leagues, who run

esports-players-21870> accessed 25 May 2022.

227

See further Morgan (n 151) 243.

228

Ward and Harmon (n 6) 1000–1001.

229

ibid 1000.

230

ibid 1006.

231

ibid 1005.

232

Godden (n 151) 175; Giliker (n 178) 7. See for example C v WH (n 165); Barry

Congregation (n 133).

233

Barclays Bank Plc v Various Claimants [2020] UKSC 13, [2020] AC 973 [1]

(Lady Hale P).

234

ibid [1], [27] (Lady Hale P).

York Law Review

tournaments,

235

in which case both employers could be held dually

vicariously liable.

236

Second, vicarious liability can only be established where there is

sufficient connection between the employment relationship

established and the tortfeasor’s harmful behaviour.

237

The application

of vicarious liability to abuse in traditional sports has been analysed

previously.

238

However, Lord Hope has noted that the connection

between employment in entertainment industries and the abuse of

fans remains unclear.

239

It is argued here that three doctrinal

ambiguities must be resolved in order to clarify the application of

vicarious liability to the esports sector.

3.2. Establishing Liability Under Stage One

The first stage of the vicarious liability test is satisfied where a

tortfeasor is in a relationship akin to employment with an esports

team or league, rather than ‘carrying on business on [their] own

account.’

240

In order to establish whether a relationship akin to

employment exists, courts must analyse the relationship between the

tortfeasor and defendant on a case-by-case basis.

241

In this section,

typical esports employment relationships will be examined and it will

be argued that teams and leagues are likely to be held vicariously

liable under the stage one test.

235

See s 1.4.

236

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ

1151, [2006] QB 510 [79] (Rix LJ). See also Various Claimants v Institute of the

Brothers of the Christian Schools [2012] UKSC 56, [2013] 2 AC 1 [39]–[40], [45]

(Lord Phillips P).

237

Barclays Bank (n 233) [1] (Hale LJ); WM Morrison Supermarkets Plc v Various

Claimants [2020] UKSC 12, [2020] AC 989 [25] (Lord Reed DP).

238

Morgan (n 151).

239

Lord Hope of Craighead, ‘Tailoring the Law on Vicarious Liability’ (2013)

129(Oct) LQR 514, 526. See also Christian Schools (n 236) [85] (Lord Phillips P).

240

Barclays Bank (n 233) [27] (Lady Hale P).

241

ibid.

Volume I I I– Summer 2022

Defendants who closely direct the activities of tortfeasors are

typically in relationships akin to employment.

242

In Gravil, the Court

of Appeal found a rugby club vicariously liable partly on the basis

that players were required to make themselves available for matches

and training.

243

As Holden and Baker argue, esports teams and

leagues direct the activities of players far more closely than

traditional sports employers.

244

Esports employers can exert

overwhelming influence over players because of the power

differentials present in the sector;

245

leagues typically own the

intellectual property underpinning players’ highly specialised

careers,

246

and competitors are often recruited by teams as minors,

247

transported to unfamiliar countries,

248

and then monitored by

managers who act as ‘the mom, the dad, the agent… the landlord,

[and] the life coach.’

249

During World of Warcraft’s Race to World

First, players are expected to play for up to fourteen hours per day,

with sleep and breaks closely regulated.

250

Professional Overwatch

players’ schedules are managed by the League,

251

who retain the

ability to change working rules and conditions at their discretion.

252

242

Christian Schools (n 236) [56] pt ii (Lord Phillips P); Barclays Bank (n 233) [28]

(Lady Hale P). See also Barclays Bank (n 233) [20] (Lady Hale P) on the importance

of control.

243

Gravil (n 132) [7], [9] (Lord Clarke MR).

244

Holden and Baker (n 6) 410–412.

245

ibid 412.

246

Bayliss (n 62) 377–378; Holden and Baker (n 6) 412.

247

Paul (n 108). See also Overwatch League (n 73) para 3.1.

248

Alonzo (n 62).

249

Myers (n 143).

250

Ben Barrett, ‘1,960 Man-Hours Per Week: The Truth About WoW Raiding at the

Highest Level’ (PCGamesN, 15 December 2017) <https://www.pcgamesn.com/world-

of-warcraft/wow-raiding-nighthold-method-danish-terrace-death-

jesters#:~:text=by%20Network%2DN-

,1%2C960%20man%2Dhours%20per%20week%3A%20the%20truth%20about%20

WoW%20raiding,Mythic%20difficulty%20%E2%80%93%20unlocks%20next%20w

eek.> accessed 25 May 2022; Preach Gaming (n 79).

251

Overwatch League (n 73) para 5.3; Holden and Baker (n 6) 429.

252

Overwatch League (n 73) para 1.4; Holden and Baker (n 6) 430.

York Law Review

Overwatch teams typically live together in company housing and are

held to strict training schedules with defined hours for training,

eating, and socialising.

253

Some teams mandate curfews at bedtime.

254

As esports teams and leagues typically direct activities in minute

detail, they are very likely to be considered akin to employers.

Three further factors suggest that esports players are likely to be

considered akin to employees. First, tortfeasors who are bound by

external rules have repeatedly satisfied the first stage of the test.

255

Teams and leagues near universally impose disciplinary authority

over players;

256

Overwatch League players are held to a written code

of conduct interpreted and amended entirely at the discretion of the

League.

257

Second, those who do not work under a portfolio practice

are also typically akin to employees.

258

Many teams and leagues

restrict players’ abilities to compete in other competitions, move

between teams, and work elsewhere, actively stifling portfolio

practices.

259

It is also often unfeasible for players expected to compete

for extended hours to seek external work.

260

Although many players

stream alongside their employment, some personal streams will

generate very little income, and success largely depends on the

celebrity conferred by players’ professional esports employment.

261

Third, those paid retainers and engaged across multiple projects are

253

Alonzo (n 62). See also discussion of League of Legends schedules in Myers (n

143).

254

Myers (n 143).

255

See for example Christian Schools (n 236) [56] pt iv (Lord Phillips P); Gravil (n

132) [7], [9] (Lord Clarke MR). cf JXJ (n 179) [138] (Chamberlain J).

256

Bayliss (n 62) 375, 402; Holden and Baker (n 6) 405.

257

Overwatch League (n 73) para 1.4.

258

Gravil (n 132) [7], [9] (Lord Clarke MR). cf Barclays Bank (n 233) [28] (Lady

Hale P); SKX v Manchester City Council [2021] EWHC 782 (QB), [2021] 4 WLR 56

[53] (Cavanagh J).

259

Holden and Baker (n 6) 412, 429. cf discussion of the ESL Pro League in Holden

and Baker (n 6) 407, 426

260

See RogerBrown discussing this point in Preach Gaming (n 79) 51.50–54.00.

261

ibid 51.50–54.00. See further Bayliss (n 62) 365, 376–377.

Volume I I I– Summer 2022

more likely to be akin to employees.

262

Top World of Warcraft guilds

now provide payment in order to retain skilled players,

263

and

Overwatch League competitors are paid minimum salaries of $50,000

per year.

264

Many players also sign contracts extending across

multiple tournament seasons,

265

likely establishing vicarious liability

under the stage one test.

In doubtful cases, courts examine the five ‘policy reasons’

underpinning vicarious liability in order to establish whether a

relationship akin to employment exists.

266

Although it is argued here

that many esports players undoubtedly satisfy the stage one test, the

policy factors will briefly be considered for completeness. The three

most important policy factors require that tortfeasors work ‘on behalf

of the employer’ and as ‘part of the business activity of the

employer’, thus ‘creat[ing] the risk of the tort’.

267

The work

completed by esports professionals is the business of their team and

league,

268

and the risk of abusive behaviour increases as players are

exposed to fans. Under the fourth policy factor, defendants

controlling tortfeasors more closely may be akin to employers; as

previously established, teams and leagues exercise a large degree of

control over players.

269

Finally, the greater ability of teams and

leagues, rather than individual abusers, to compensate victims may

sometimes support the imposition of vicarious liability.

270

As such,

262

Barclays Bank (n 233) [28] (Lady Hale P); SKX (n 258) [53] (Cavanagh J).

263

Preach Gaming (n 79) 45.00–52.00.

264

Noah Higgins-Dunn, ‘Six-Figure Salaries, Million-Dollar Prizes, Health Benefits

and Housing Included - Inside the Overwatch League’ CNBC (29 September 2019)

<https://www.cnbc.com/2019/09/29/what-its-like-to-be-a-professional-gamer-in-the-

overwatch-league.html> accessed 25 May 2022. See also Bayliss (n 62) 378.

265

Higgins-Dunn (n 264); Bayliss (n 62) 378.

266

Barclays Bank (n 233) [27] (Lady Hale P).

267

Christian Schools (n 236) [35] (Lord Phillips P). Barclays Bank (n 233) [20] (Lady

Hale P).

268

Holden and Baker 2019 (n 6) 429.

269

Christian Schools (n 236) [35] (Lord Phillips P). See also Barclays Bank (n 233)

[20] (Lady Hale P).

270

Christian Schools (n 236) [35] (Lord Phillips P); Barclays Bank (n 233) [20] (Lady

York Law Review

the policy factors further support the conclusion that the stage one test

is met.

3.3. Establishing liability under Stage Two

It will now be argued that three ambiguities in stage two of the test

for vicarious liability should be resolved in order to clarify that

esports employers may be held liable for the torts of their players.

The standard stage two test examines whether a tortfeasor’s actions

were committed ‘in the ordinary course of [their] employment’.

271

Courts should firstly clarify whether sexual abuse committed in the

course of engaging with fans is sufficiently connected to

employment. An alternative stage two test examining ‘proximity’ and

‘authority’ can be used in sexual abuse cases.

272

The second and third

necessary clarifications relate to whether employers confer authority

when they confer celebrity, and whether the alternative test applies in

the same way to the abuse of adults as to the abuse of children.

The standard stage two test is met where a tortfeasor’s wrongful

conduct was committed ‘in the ordinary course of [their]

employment’;

273

courts must examine whether the wrong was

sufficiently connected to the ‘field of activities’ usually entrusted to

the employee.

274

The Supreme Court has stated that ‘sexual abuse can

never be a negligent way of performing [an employment]

requirement’,

275

as it is too dissimilar to authorised activities.

276

However, the court is yet to consider a case in which an abusive

employee has been tasked with cultivating relationships with fans;

Hale P).

271

Morrison Supermarkets (n 237) [25] (Lord Reed DP).

272

Christian Schools (n 236) [83]–[84] (Lord Phillips P); Morrison Supermarkets (n

237) [23] (Lord Reed DP); Barry Congregation (n 133) [83]–[84] (Davies LJ).

273

Morrison Supermarkets (n 237) [25] (Lord Reed DP).

274

ibid.

275

Christian Schools (n 236) [62] (Lord Phillips P).

276

Morrison Supermarkets (n 237) [23] (Lord Reed DP).

Volume I I I– Summer 2022

Morgan has argued that sports teams could be held vicariously liable

for sexual abuse where victims are met ‘in the context of club

activities’ or where players are ‘tasked with engaging with members

of the public for the purposes of the club.’

277

The torts of esports players who meet victims in the context of team

activities should be considered to be sufficiently connected to their

employment. In Maga, the Court of Appeal held a church liable for

the torts of an abusive priest who had developed a relationship with

his victim during ‘church-organised’ discos.

278

Where employees

meet victims at work, a sufficient connection can be established even

where abuse ultimately occurs away from the workplace or outside of

usual employment hours.

279

Much of the physical abuse alleged in

esports has taken place at conventions and tournaments attended by

teams in professional capacities.

280

Allegations of groping at after-

parties are commonplace.

281

Esports players also meet victims during

online team events. Women joined MethodJosh’s Discord server after

finding him on team livestreams

282

and both of the underage fans

allegedly groomed by DreamKazper followed him after watching

promotional events.

283

The standard test should also be met because esports players are

frequently tasked with engaging with fans by their employers.

284

277

Morgan (n 151) 248.

278

Maga (n 141) [48] (Lord Neuberger MR).

279

Haringey LBC (n 151) [150] (McCombe LJ). Although see also EXE (n 142)

(Griffiths J) [127].

280

Messner (n 14).

281

See for example (Michael n 15); Dom Sacco, ‘“This Criminal Behaviour Needs to

Get Out of Society” - UK FGC Host Logan Sama on Disturbing Reports from EVO

After-Party’ (EsportsNews, 11 August 2019) <https://esports-

news.co.uk/2019/08/11/logan-sama-on-evo-after-party/> accessed 25 May 2022. See

also D’Anastasio (n 5).

282

D’Anastasio (n 5).

283

D’Anastasio (n 109). See also Overwatch League (n 73) para 1.1 for a list of

mandatory team events.

284

See for example Smith (n 99); Archimtiros (n 63).

York Law Review

was considered relevant when establishing vicarious liability in Maga

that the tortfeasor priest had been entrusted with a duty to attract

people to church by developing relationships within his

community.

285

Similarly, dicta in GB suggests that an employee

responsible for a youth fan club would act within their employment

when abusing supporters.

286

Esports teams ‘boost individual [player]

profiles’

287

in the expectation that employees will attract fans by

being ‘as accessible as possible’ online.

288

Esports players are also

often required to chat with fans during mandatory team streams such

as Race to World First events, which run for upwards of sixteen hours

per day.

289

As sexual abuse is connected to esports players’ duties to

meet and develop personal relationships with fans, future judgments

should clarify that sexual abuse can be connected to employment

under the standard test.

An alternative stage two test can be applied where sexual abuse is

alleged in order to emphasise criteria ‘particularly relevant to that

form of wrongdoing.’

290

Courts can hold employers vicariously liable

for sexual abuse where employment confers ‘proximity’ to and

‘authority’ over victims.

291

It is clearly arguable that esports players

are afforded proximity to potential victims through exposure to fans.

However, courts should clarify that employers grant players authority

over victims where they confer celebrity status.

285

Maga (n 141) [46]–[47] (Lord Neuberger MR).

286

GB v Stoke City Football Club Ltd [2015] EWHC 2862, [2015] 10 WLUK 831

[148] (Butler J). Morgan (n 151) 249.

287

Method, ‘Road to World First’ <https://www.method.gg/road-to-world-first>

accessed 25 May 2022.

288

Smith (n 99).

289

Archimtiros (n 63). See also discussion of mandatory streaming in professional

League of Legends in Smith (n 99).

290

Morrison Supermarkets (n 237) [23] (Lord Reed DP). See also Christian Schools

(n 236) [83] (Lord Phillips P).

291

Christian Schools (n 236) [84] (Lord Phillips DP); Morrison Supermarkets (n 237)

[23] (Lord Reed DP); Barry Congregation (n 133) [83]–[84] (Davies LJ).

Volume I I I– Summer 2022

Esports teams confer authority on their employees by creating

‘athlete-celebrities’

292

who stream under team branding and use team-

based pseudonyms such as ‘MethodJosh’.

293

Courts have previously

found conferral of authority where tortfeasors enjoy general moral

responsibility, for example by virtue of employment in teaching or

the priesthood.

294

Authority conferred by celebrity is, admittedly,

entirely different. However, whilst arguing that vicarious liability

should be restricted, Morgan has proposed that authority is context-

specific, as some claimants will not respect traditional authority

figures in practice.

295

Just as context can limit liability, it can also

extend it; although celebrity sportspeople may not be afforded

universal respect, it is proposed the test should be satisfied where

tortfeasors hold authority over the actual claimant in question.

Celebrity esports players hold authority over fans and junior

colleagues. In Barry Congregation, authority had led the sexually

abused claimant to assume that the tortfeasor would act with ‘pure

motives’.

296

In a similar way, esports players occupy positions of trust

within online communities due to the power differentials created by

celebrity status.

297

Authority also manifested in Barry Congregation

as a fear that there would be ‘repercussions’ if a complaint was

made.

298

Many victims have expressed fear about speaking out

against celebrity esports players with large followings and industry

connections,

299

believing that their reports would be dismissed

300

and

their careers undermined

301

by abusers wielding community authority.

292

Darvin, Vooris and Mahoney (n 6) 40.

293

See for example Sacco (n 4).

294

Maga (n 141) 45 (Lord Neuberger MR).

295

Morgan (n 144) 941.

296

Barry Congregation (n 133) [85] (Davies LJ).

297

See discussion of Dreamkazper in D’Anastasio (n 109); D’Anastasio (n 5)

discussing followers feeling they can trust the objects of their fandom.

298

Barry Congregation (n 133) [85] (Davies LJ).

299

See discussion of Elvine in D’Anastasio (n 5).

300

Messner (n 14).

301

Liao (n 12); Messner (n 14); Allegations against Iamspoon in D’Anastasio (n 84).

York Law Review

As it is arguable that the conferral of celebrity status confers authority

over potential victims, it should be clarified whether such a situation

would satisfy the alternative test.

Finally, it should be clarified that the alternate test applies in the same

way regardless of whether adults or children are abused. Courts often

baldly state that the alternate test applies ‘in cases concerned with the

sexual abuse of children.’

302

In Barry Congregation, the Court of

Appeal was split on the question of whether the alternate test could

apply in the same way where an adult had been abused.

303

Davies LJ,

giving the lead judgment, considered that the age of the claimant was

unimportant as ‘the rationale for the test’ did not depend on the

‘characteristics of the victim’.

304

By contrast, Males LJ, whilst

acknowledging that each case is fact-specific, argued that adults

could generally be expected to resist abuse by removing themselves

from harmful situations.

305

Males LJ’s approach has so far been

accepted at face value by the academic community, potentially

rendering adult victims less able to access tortious remedies.

306

Davies LJ’s application of the alternate test should be preferred for

two reasons. First, risk-based approaches increasingly underpin

vicarious liability,

307

and yet the risk of sexual abuse does not

necessarily lessen with age. Unequal power dynamics, for example

between employees and managers

308

or celebrities and fans,

309

302

Morrison Supermarkets (n 237) [23] (Lord Reed DP); Christian Schools (n 236)

[3] (Lord Phillips P).

303

Barry Congregation (n 133).

304

ibid [84] (Davies LJ).

305

ibid [96] (Males LJ).

306

Giliker (n 24); Abigail Scott, ‘Revisiting the Close Connection Test for Vicarious

Liability: Adult Sexual Abuse Cases’ (Ropewalk Chambers, 23 March 2021)

<https://www.ropewalk.co.uk/knowledge-sharing/blog/personal-

injury/1792/revisiting-the-close-connection-test-for-vicarious-liability-adult-sexual-

abuse-cases> accessed 25 May 2022.

307

Giliker (n 178) 17.

308

See for example Method (n 4).

309

See for example D’Anastasio (n 109).

Volume I I I– Summer 2022

increase the risk of sexual abuse even where victims are adults.

310

Chamallas argues that judges who have not experienced workplace

sexual harassment struggle to appreciate that abuse can be

engendered by employment dynamics,

311

an interesting claim when it

is considered that the lead judgment in Barry Congregation was

provided by a female judge, whilst the adult employee exception was

suggested by a man.

312

Second, as vicarious liability attempts to

ensure that harm is borne by the party who should ‘fairly bear

liability’,

313

denying adult claimants a remedy effectively blames

victims for abuse.

314

As Chamallas has noted, it is unfair to expect

women to alter their own behaviour on the assumption that they will

be harmed intentionally by men,

315

and as such it should be clarified

that the alternative test applies in the same way regardless of the age

of the victim.

Esports teams could be held vicariously liable for the torts of their

players if it was clarified that sexual abuse is a wrongful way of

engaging with fans, satisfying the standard test, or that employers

who confer celebrity confer authority and that adults are not expected

to resist abuse, satisfying the alternate test. These ambiguities should

be resolved whenever an appropriate case is next considered,

although it is acknowledged that these points could best be addressed

if a test case was brought before the courts.

Finally, it is acknowledged that vicarious liability should not be

expanded to remedy abuse in specific sectors at the expense of overall

doctrinal coherence.

316

Vicarious liability scholars have repeatedly

argued that public outrage over sexual abuse has extended the

310

Chamallas (n 18) 166.

311

ibid 159.

312

Barry Congregation (n 133).

313

Christian Schools (n 236) [83] (Lord Phillips P).

314

See further Waterhouse, Reynolds and Egan (n 130) 2.

315

Chamallas (n 18) 155.

316

Lord Hope (n 239) 525.

York Law Review

doctrine,

317

undermining clarity,

318

facilitating opportunistic claims,

319

and placing a disproportionate burden on corporate defendants.

320

Giliker has recently described vicarious liability as an ‘uncontrolled

instrument of distributive justice’ imposing liability on ‘innocent’

defendants.

321

The innocence of corporate defendants will be

questioned in the following section, but for now it should be noted

that the clarifications proposed here are not expansions, but rather the

novel and proper application of existing rules. Further, these

clarifications are limited to narrow fact patterns; clarification one will

apply only where employees have been tasked with engaging with

fans, and the development of the alternative sexual abuse test means

that clarifications two and three are insulated from having any effect

on commercial cases.

322

3.4. Usefulness of vicarious claims

Vicarious liability could usefully remedy abuse in the esports sector

by triggering wider industry change. It is commonly argued that

vicarious liability is of limited use because it frustrates ‘corrective

justice’

323

by forcing losses upon ‘innocent’ employers.

324

This

argument is undermined by the reality that employers are frequently

personally responsible for abuse, even where specific negligent

practices cannot be identified. Morgan has proposed that establishing

317

Phillip Morgan, ‘Vicarious Liability on the Move’ (2013) 129 LQR 139, 139;

Giliker (n 178) 3, 19–20.

318

Lord Hope (n 239) 525.

319

Paula Giliker, ‘Vicarious Liability “On the Move”: The English Supreme Court

and Enterprise Liability: A Commentary on Various Claimants v Catholic Child

Welfare Society [2012] United Supreme Court 56’ (2013) 4(3) Journal of European

Tort Law 306, 313.

320

ibid 312.

321

Giliker (n 178) 1, 3, 19–20.

322

Donal Nolan, ‘Reigning in Vicarious Liability (Case Comment)’ 49(4) ILJ 609,

621. cf Giliker (n 24).

323

Godden (n 151) 174; Giliker (n 178) 1.

324

Morgan (n 144) 945; Giliker (n 178) 1.

Volume I I I– Summer 2022

company liability through negligence is often preferable to vicarious

liability, as negligence claims identify specific blameworthy officials

and practices.

325

Morgan’s argument demonstrates Chamallas’ claim

that people prefer to blame individuals than to recognise systematic

failings;

326

abuse is often rationalised as a ‘pathological outsider

infiltrating an otherwise healthy system’ where it is actually

symptomatic of wider institutional failure.

327

For example, it is

unlikely that Method would be held liable in negligence for failing to

investigate MethodJosh adequately, despite this failing indicating the

presence of a wider misogynistic and elitist culture at the

organisation.

328

Employers who allow abusive cultures to develop are

partly responsible for abuse, and it is therefore appropriate that they

bear losses through vicarious liability.

Vicarious liability claims would be useful in the esports sector

because teams currently do not take their responsibility to reduce

abuse seriously. Celebrity esports players are typically not required to

comply with any background checks or sexual harassment training.

329

The twenty-three-year-old CEO of one Overwatch League team

responded to sexual abuse allegations by having ‘parental’ discussions

with players and mandating visits to art galleries so that employees

could ‘develop their public personas in healthy ways’.

330

Holden,

Baker, and Edelman argue that industry change is possible; just as

company liability has improved employment practices in traditional

sports, abuse could be lessened in esports.

331

The imposition of

liability may encourage teams to take proactive steps to reduce abuse

by improving recruitment and training and promoting internal

325

Morgan (n 144) 945.

326

Chamallas (n 18) 167–169.

327

ibid 170–171.

328

See s 3.1; Messner (n 14); Sacco (n 4).

329

D’Anastasio (n 5); D’Anastasio (n 84).

330

Myers (n 143). See further Lyons discussing coach responses to abuse in Paul (n

108).

331

Holden, Baker and Edelman (n 11) 39–40.

York Law Review

transparency.

332

Method’s reformation demonstrates that teams make

positive changes when held to account;

333

the team now conducts

background checks, provides anti-harassment training, has formal

disciplinary and reporting procedures, and employs an external HR

consultant.

334

Crucially, where teams reduce harassment amongst elite

players, social norms evolve, lessening abuse in wider online

communities.

335

It must briefly be acknowledged that it may not be useful or

appropriate to impose vicarious liability on very small teams. Whilst

some esports teams are large corporations which can instigate

meaningful change,

336

others are small grassroots organisations.

337

Vicarious liability could likely be established even where teams are

unincorporated,

338

players are amateur,

339

and no profits are

generated.

340

Courts have justified imposing liability on

unincorporated groups on the basis that previous defendants have had

more extensive financial resources

341

and insurance

342

than individual

tortfeasors. However, as Morgan has discussed, there is no limited

liability in unincorporated sports teams, and as such any individual

player could be forced to pay compensation.

343

Further, small teams

are likely to face ‘fluctuating membership’ and lack authority over

332

Gravil (n 132) [26] (Lord Clarke MR); Morgan (n 151) 247–248, 251, 260;

Chamallas (n 18) 152.

333

Sacco (n 4).

334

Method (n 184); Method, ‘Meet the New Method Guild’

<https://www.method.gg/meet-the-new-method-guild> accessed 25 May 2022.

335

Holden, Baker and Edelman (n 11) 39, 42.

336

Rondina (n 70).

337

See discussion of team size in Preach Gaming (n 79) 45.00–46.00, 51.20–51.40.

338

Christian Schools (n 236) [20], [27] (Lord Phillips P); Morgan (n 151) 255.

339

Morgan (n 151) 252–254; Barclays Bank (n 233) [29] (Lady Hale P). cf Gravil (n

132) [10], [41] (Lord Clarke MR).

340

Gravil (n 132) [9] (Lord Clarke MR); Christian Schools (n 236) [57]–[58] (Lord

Phillips P); Morgan (n 151) 254.

341

Christian Schools (n 236) [31]–[32] (Lord Phillips P).

342

Gravil (n 132) [28] (Lord Clarke MR).

343

Morgan (n 151) 256.

Volume I I I– Summer 2022

players,

344

a problem especially acute in informal online groups. As

such, whilst it is useful to hold most esports teams liable for the torts

of their players in order to effect wider community change, small

teams should arguably be shielded from liability.

345

3.5. Feasibility of Vicarious Claims

Cost is the most significant barrier to the feasibility of civil claims

against esports teams.

346

Legal aid is available to some complainants

alleging sexual offences, harassment, and child sexual abuse;

347

costs

may be covered in civil rape,

348

sexual assault,

349

and grooming

cases,

350

where indecent pictures of children have been shared,

351

and

where an injunction is sought following harassment.

352

However,

adult claimants seeking compensation for verbal harassment or the

sharing of intimate pictures are ineligible for legal aid, as are those

who exceed maximum income limits

353

or those bringing claims with

too low a chance of success.

354

As legal uncertainty could undermine

the availability of funding, ambiguities in the vicarious liability

should be resolved in order to render claims feasible.

344

ibid 256.

345

ibid 261.

346

Bublick (n 173) 77; Godden (n 151) 177; Holden, Baker and Edelman (n 11) 25.

347

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) s 9,

Sch 1 Pt 1 ss 3(1), 37(1) and 39(1).

348

ibid Sch1 Pt 1 s 39(1); Sexual Offences Act 2003 s 1.

349

LASPO 2012 (n 347) Sch1 Pt 1 s 39(1); Sexual Offences Act 2003 ss 2, 3, 9, 10.

350

LASPO 2012 (n 347) Sch1 Pt 1 s 39(1), Sch1 Pt 1 s 3(1); Sexual Offences Act

2003 ss 14, 15, 15A.

351

LASPO 2012 (n 347) Sch1 Pt 1 s 3(1).

352

ibid Sch1 Pt 1 s 37(1).

353

ibid s 11; The Civil Legal Aid (Financial Resources and Payment for Services)

Regulations 2013 ss 6, 7, and 8.

354

Civil Legal Aid (Merits Criteria) Regulations 2013 ss 5 and 43; The Conditional

Fee Agreements Order 2013 ss 3 and 5; Constitutional Affairs Committee,

‘Constitutional Affairs - Third Report’ (HC 2005-06); Stuart Sime, A Practical

Approach to Civil Procedure (OUP 2020) ch 2 para 2.18.

York Law Review

Merely increasing awareness of the possibility of liability in the

esports sector could effect change, even where funding constraints

frustrate some claims. Clarifying the application of vicarious liability

to esports teams would empower lawyers and charities

355

to warn

employers of the risk of liability and make victims aware of their

legal options.

356

Many employers currently consider esports to be an

‘unregulated’ industry,

357

but those aware of the financial

consequences of abuse have made meaningful improvements.

358

such, increasing awareness of vicarious liability in esports by

clarifying the doctrine would be likely to prompt teams to reform

their practices proactively before any litigation is brought.

4 Conclusion

This article has argued that vicarious liability could play a key role in

remedying and lessening abuse in the esports sector. Courts should

clarify at the next opportunity that sexual abuse is a wrongful way of

developing relationships with fans, that employers who confer

celebrity confer authority, and that sexual abuse is connected to

employment in the same way regardless of the age of the victim.

Should these clarifications be made, funding constraints would be

lessened and industry awareness of liability would be increased,

promoting improvements in esports employment practices and

ultimately reducing abuse by changing social norms in online gaming

communities.

355

Women in Games <https://www.womeningames.org/> accessed 25 May 2022;

British Esports, ‘Women in Esports’ <https://britishesports.org/women-in-esports-

campaign/> accessed 25 May 2022.

356

See further Keats Citron (n 1) 377, 413.

357

Preach Gaming (n 79) 46.10–46.20.

358

Method, ‘Method Rebuild’ (2 October 2020) <https://www.method.gg/rebuild>

accessed 30 May 2021