There is an increasing amount of noise surrounding freedom of speech, fake news, and everyones right to be heard. This has particular bearing on the gaming community, where the term freedom of speech is often used incorrectly.
On the other hand, online personalities are often playing a role in game marketing, and issues with GamerGate and other hate groups latching onto gaming means that games, studios and publishers are confronted with the task of moderating community and forum posts and interactions while being told they are censoring others. Hence, depriving someone of their right to free speech.
As an entertainment attorney with over seven years of experience in a practice dedicated exclusively to gaming culture and industry, this has been an ongoing cause for concern. Its an issue my clients face daily.
Legally, theres no argument to be had. Let me explain why.
Felix Kjellberg, aka PewDiePie, blamed the press immediately after apologizing for his bad judgement, which brings up some interesting legal points about his situation.
He seemed to be operating under the assumption that the Wall Street Journal and mainstream media intentionally destroyed his business relationships. However, based on his own explanation, its more than likely he broke his contract under any number of contract theories, as well examine below.
This was my first notice of PewDiePie, so Im not bringing any baggage into this debate. I dont like him or dislike him. I just know hes being widely discussed, and Im familiar with the legal aspects of these situations.
His departure from Google and Disney seems like a no-brainer to anyone with a basic understanding of entertainment contracts. His first mistake likely came from his presumption that either Google or Disney have a sense of humor, or value him for his comedic chops.
Companies typically wont support you when doing so will harm their brand or otherwise expose them to liability
The contracts he signed with Google (through YouTube) and Disney (through Maker Studios) should have made it apparent that they do not. Any tolerance on their part would be based on financial interest, not out of any respect for his freedom of expression or his budding career as a rookie comedian. That is not the business they are in, as evidenced by how quickly they dropped him when his humor became a liability.
Companies typically wont support you when doing so will harm their brand or otherwise expose them to liability. Thats why YouTube has a code of conduct, and why most contracts for endorsement include rather robust non-disparagement/no disparaging effect clauses. Disney includes this in its terms of use:
You may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.
Or, if youd like a more direct example from one of my own agreements:
Influencer may not: [.] engage in conduct or a pattern of behavior that may: (i) diminish Influencers reputation as a personality in the gaming community; or (ii) as a result of [Companys] association with Influencer, harm [Companys] reputation.
Typically a non-disparagement clause wont act alone to limit influencer conduct in an agreement. Some agreements will include strong moral clauses, broad warranties and representations, and at will termination as additional means of controlling the influencer or providing backers a buffer if the Influencers conduct creates a problem.
For example, a moral provision may prohibit an influencer from engaging in behavior in his or her private life that may amount to a scandal, while almost any reps and warranties provision will include a proviso prohibiting content that is defamatory or otherwise subject to legal action. The goal is to make sure, if you get into a scandal, you can be cast off quickly and with little legal repercussion.
In the interest of fairness, it is possible that the relevance of such provisions werent made clear to Kjellberg. In an effort to court lucrative talent, backers may treat such verbiage as boilerplate until and unless something triggers it. Ive heard they said we dont need to worry about that part, from more than a few clients.
This doesnt absolve responsibility on the part of the talent. You should read and treat as enforceable anything you want to sign. If youre not sure, consult an attorney and save yourself trouble down the road. However, its generally common sense that companies like Google and Disney are in this for two main reasons: it helps their bottom line, and its good for brand building.
When an influencer under contract does something that harms that brand, that influencer is materially breaching their contract. That means termination.
Its possible that the relationship can still be repaired. However, he broke the rule any competent attorney would advise in a matter concerning an open dispute: the less you say, the better. An eight minute diatribe placing blame on third parties and treating your business partners as complicit in the conspiracy against you probably isnt going to help smooth this out.
Thus my surprise when Kjellberg admitted that his content was offensive and he crossed the line, that he exhibited poor judgment and that his amateurish attempt at comedy was a failure. He effectively admitted to breaching his contracts with Disney and Google, and then immediately sought to blame the press.
The context for his joke, and whether mainstream media took it out of context, never really had anything to do with it. Its reasonable for companies like Disney and Google to consider mainstream media as the litmus test for what is considered offensive; their respective brands cater to a far broader demographic than PewDiePies followers, after all.
Welcome to the wonderful world of entertainment, Felix. Youve joined an elite club of performers, comedians and artists who crossed the line. No one is entitled to a platform, and your platform is a privilege that you will lose if you breach the terms under which that platform operates. In all likelihood you broke your contract. You even explained how you broke that contract in a video. Its irrational to conclude that a third party is responsible for the failure of your contract.
More alarming is the response by supporters, or rather, the response against detractors. The idea that companies or institutions are infringing on someones freedom of speech is commonly expressed, often in very strong language. When Twitter banned Milo Yiannopolous, we heard the same refrain. Kjellberg himself has already confirmed that a subset of his fan base consists of white supremacists. As many of us have witnessed, that particular subset is known to be more vocal about a perceived injustice than your average netizen.
Let me go ahead and get this out of the way:
A private individuals right to tell you to shut up, and a companys right to censor your offensive content, are both protected by the first amendment.
If a client of mine terminates a players subscription because they violated a games code of conduct by spamming a chat channel with anti-Semitic rhetoric, they are well within their contractual rights to terminate that subscription. Your participation on a platform like Twitter, YouTube or one of the excellent games offered by my clients, however, is not. That is strictly governed by the Terms of Service or EULA you agree to when you sign up.
If you are an Influencer, your continued support from your backers is contingent on your compliance with whatever non-disparagement language youve agreed to. Almost every platform available to you is offered by a private entity. Surprise! Welcome to Capitalism!
The first amendment isnt prohibitive against society at large; it protects society from government action. This typically shouldnt be a point of confusion, as the text itself is clear and unequivocal:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The context of free speech, in roughly every territory where free speech exists, is uniformly a limitation on government power to suppress that right. Your personal feelings about censorship notwithstanding (or mine, for that matter), your only recourse against censorship on a platform provided by a private company is to not use that platform. There is no legal recourse. In fact, if there were, that really would violate the First Amendment. Clearly no one wants that.
When someone decries censorship and claims free speech, they generally are not talking about the right to say what they want. They are talking about the right to say what they want wherever they want to share it, and that is a distinction that crosses the line between fundamental human right and moral rationalization.
No one is morally obligated to listen to another persons opinion. No one should feel morally obligated to offer a platform for someones message when they consider that message offensive. Freedom of speech does not place one persons rights above another persons right, simply because the other provides the platform. That rationale subverts the fundamental right to freedom of speech generally.
We like to see the Internet as an open platform for the free exchange of ideas. Many of the companies who make the Internet possible, and they are each and every one private corporations, do their best to make that a reality.
But as we begin to recognize the risks associated with that free exchange, companies must take measures to safeguard the privacy and happiness of their consumers. This necessarily means censoring the content shared online. We are comfortable with censorship intended to protect us (e.g., prohibitions against sharing your personally identifiable information, passwords, etc. online), but we are less comfortable with censorship designed to protect others (e.g., codes of conduct).
The bottom line is that when you engage in free speech online, you typically do so as a consumer of the platform you are using. Normally you wont have the opportunity to negotiate the contracts you are bound to (whether it be a ToS or EULA) when you use those services.
Even the most successful influencers, Kjellberg included, are bound by provisions that limit their behavior. Ironically, they are often subject to greater restrictions because of their influence on the brand. The reality is that your right to free speech may directly conflict with the agreement youve entered, and engaging in some kinds of speech will almost certainly cost you a contract.
Mona Ibrahim is a Senior Associate at Interactive Entertainment Law Group. She is an avid gamer and has dedicated her career to counseling the video game industry and indie development community.
Visit link:
The limits of free speech (when you have 50 million YouTube subscribers) - Polygon
- Here's what the law says about protesting on Texas college campuses - The Texas Tribune - April 25th, 2024 [April 25th, 2024]
- The awkward truth about sex and free speech | Nina Welsch - The Critic - April 25th, 2024 [April 25th, 2024]
- Get the Facts: How far does the First Amendment go? - WDSU New Orleans - April 25th, 2024 [April 25th, 2024]
- NC school adopts free speech policy after firing professor who opposed critical theory - ADF Media - April 25th, 2024 [April 25th, 2024]
- Biden's Government Takeover of the Internet Threatens Freedom of Speech - RealClearPolicy - April 25th, 2024 [April 25th, 2024]
- Professor tackles subject of limiting freedom to express - Yahoo News Canada - April 25th, 2024 [April 25th, 2024]
- Louisiana Tech earns top rating for free speech - Foundation for Individual Rights and Expression - April 25th, 2024 [April 25th, 2024]
- Freedom of speech 'under assault' at Palestine protests in US universities - The National - April 25th, 2024 [April 25th, 2024]
- Is TikTok Protected Speech Or Threat To Americans? Wyoming Legislators Split - Cowboy State Daily - April 25th, 2024 [April 25th, 2024]
- Free Speech Aids Racial Justice. Activists Must Defend It. | Opinion - Harvard Crimson - February 16th, 2024 [February 16th, 2024]
- Progressives Are Ditching Free Speech To Fight 'Disinformation' - Reason - February 16th, 2024 [February 16th, 2024]
- There is a way out of cancel culture but it's not free speech - Times Higher Education - February 16th, 2024 [February 16th, 2024]
- Editor's take: Limiting hate speech not a First Amendment violation - The Pajaronian - February 16th, 2024 [February 16th, 2024]
- Israel's Proposed 'Terror Incitement' Law Is a Dangerous Threat to Freedom of Speech - Haaretz Editorial - Haaretz - February 16th, 2024 [February 16th, 2024]
- Colorado bill tasking attorney general to study online 'misinformation' sparks First Amendment debate - coloradopolitics.com - February 16th, 2024 [February 16th, 2024]
- 10 Worst Censors: 2024 | The Foundation for Individual Rights and Expression - Foundation for Individual Rights in Education - February 16th, 2024 [February 16th, 2024]
- Harvard University's Lifetime Censorship Award: Impact on Freedom of Speech and Journalism - Medriva - February 16th, 2024 [February 16th, 2024]
- Reading is freedom of speech, says 'ABCs of Book Banning' director - KCRW's This...Is Interesting - Podcast en iVoox - iVoox - February 16th, 2024 [February 16th, 2024]
- Freedom of speech or lack of civility? Resident perturbed by others berating Killeen City Council and mayor - The Killeen Daily Herald - October 16th, 2023 [October 16th, 2023]
- Harvard Students Should Know Freedom Of Speech Is Not Freedom From Consequences - The Federalist - October 16th, 2023 [October 16th, 2023]
- FIRE launches six-figure free speech campaign with primetime ... - Foundation for Individual Rights in Education - October 16th, 2023 [October 16th, 2023]
- UGS responds to free speech concerns on campus - The Stanford Daily - October 16th, 2023 [October 16th, 2023]
- UCI Year of Free Speech kicks off with virtual event - UCI News - October 16th, 2023 [October 16th, 2023]
- Book review: A Constitution To Keep: Sedition And Free Speech In ... - Maktoob media - October 16th, 2023 [October 16th, 2023]
- Protestors, supporters gather on HUB lawn for Riley Gaines' Free ... - The Daily Collegian - October 16th, 2023 [October 16th, 2023]
- Editorial: When is free speech not free on college campuses? - TribLIVE - April 27th, 2023 [April 27th, 2023]
- How do you handle free speech issues in higher education, popular discourse? - University of Illinois Urbana-Champaign - April 27th, 2023 [April 27th, 2023]
- Free speech protections are under threat in Texas Legislature - The Dallas Morning News - April 27th, 2023 [April 27th, 2023]
- Should Irish universities introduce mandatory free speech classes? - The Irish Times - April 27th, 2023 [April 27th, 2023]
- Florida House approves bill that would change rules around campus ... - WUFT - April 27th, 2023 [April 27th, 2023]
- Free speech bill 'could protect extreme views' - Times Higher Education - April 27th, 2023 [April 27th, 2023]
- Ronald Collins and Ronnie Marmo: Comedy clubs are free speech ... - Independent Record - April 27th, 2023 [April 27th, 2023]
- A notable foundation for freedom of speech - Newsday - April 27th, 2023 [April 27th, 2023]
- Troy, Alabama A&M receive poor 'red' rating from campus free ... - 1819 News - April 27th, 2023 [April 27th, 2023]
- Freedom of Speech Pros and Cons: What Both Sides Think - March 8th, 2023 [March 8th, 2023]
- What is the freedom of speech? - Alliance Defending Freedom - January 25th, 2023 [January 25th, 2023]
- freedom of speech | Wex | US Law | LII / Legal Information Institute - January 25th, 2023 [January 25th, 2023]
- First Amendment: Freedom of Speech | LII / Legal Information Institute - January 25th, 2023 [January 25th, 2023]
- Freedom of speech online: What are the Florida and Texas laws the US top court could hear a challenge to - The Indian Express - January 25th, 2023 [January 25th, 2023]
- Elon Musk says new Twitter policy is freedom of speech & not freedom ... - January 4th, 2023 [January 4th, 2023]
- CNN Calls Freedom of Speech 'Nonsense' in Moronic Rant - December 12th, 2022 [December 12th, 2022]
- Ex-CNN journo and Nobel Peace Prize laureate Maria Ressa explains why ... - December 12th, 2022 [December 12th, 2022]
- Hate speech - Wikipedia - November 27th, 2022 [November 27th, 2022]
- Freedom of Speech and Expression | CSCE - November 25th, 2022 [November 25th, 2022]
- Why Is Freedom Of Speech Important? The Relevance Explained - November 25th, 2022 [November 25th, 2022]
- 'Freedom Of Speech, But Not Freedom Of Reach': Musk Reinstates Kathy Griffin And Jordan Peterson Amid New Policy But Not Trump Yet - Forbes - November 21st, 2022 [November 21st, 2022]
- Freedom of speech is in jeopardy - The Ridgefield Press - October 15th, 2022 [October 15th, 2022]
- The Alex Jones trap: How 'owning the libs' can turn into a self-own for conservatives - Washington Examiner - October 15th, 2022 [October 15th, 2022]
- Just released: The 2022-2023 College Free Speech Rankings - Foundation for Individual Rights in Education - September 7th, 2022 [September 7th, 2022]
- Russian Court's Ban of Newspaper Novaya Gazeta is a Punch in the Face of Freedom of Speech - Novinite.com - September 7th, 2022 [September 7th, 2022]
- Bangladeshi Editor Rifat Munim Supports Salman Rushdie's Freedom Of Speech: 'Why React To The Book Or The Cartoons In This Childish Way? Why Show... - September 7th, 2022 [September 7th, 2022]
- Crikey! The exclamation of Free Speech - RadioInfo Australia - Radioinfo - September 7th, 2022 [September 7th, 2022]
- Batley row 'shows how extremists are using blasphemy to attack free speech' - The Telegraph - September 7th, 2022 [September 7th, 2022]
- Expansion of Title IX Tramples First Amendment - California Globe - September 7th, 2022 [September 7th, 2022]
- BRACK: S.C. Senate is poking free speech bear on abortion Statehouse Report - Statehouse Report - July 29th, 2022 [July 29th, 2022]
- Will AG Ken Paxton join the fight for freedom of speech? - Wilson County News - July 29th, 2022 [July 29th, 2022]
- The UK Government Wants to Scrap the Human Rights Act. Here's What to Know. - Global Citizen - July 29th, 2022 [July 29th, 2022]
- Cancel culture empowers the powerful at everyone elses expense - Foundation for Individual Rights in Education - July 29th, 2022 [July 29th, 2022]
- Repressive executive order from UNC Chapel Hill student government cuts off funding for pro-life individuals, causes - Foundation for Individual... - July 29th, 2022 [July 29th, 2022]
- Editorial: Alex Jones' lessons on the First and Sixth Amendments - CT Insider - July 29th, 2022 [July 29th, 2022]
- NEW for 7/29: How abortion now works in S.C., and more Statehouse Report - Statehouse Report - July 29th, 2022 [July 29th, 2022]
- Why Does The State Panic Over Free Speech? - The Friday Times - July 27th, 2022 [July 27th, 2022]
- How to Fix the Bias Against Free Speech on Campus - The Atlantic - July 17th, 2022 [July 17th, 2022]
- Universities are in denial over the free-speech crisis - Spiked - July 17th, 2022 [July 17th, 2022]
- Who Really Benefits From the First Amendment? - Tablet Magazine - July 17th, 2022 [July 17th, 2022]
- Legal Eagle: Is free speech abused to flout others rights? - Free Press Journal - July 17th, 2022 [July 17th, 2022]
- Free speech 'stifled' as universities cancel record number of speakers - The Telegraph - July 17th, 2022 [July 17th, 2022]
- The Online Safety Bill could lead to the biggest curtailment of free speech in modern history - The Telegraph - July 17th, 2022 [July 17th, 2022]
- LAWSUIT: Professor sues University of Washington after admins punish him for 'inappropriate' opinion - Foundation for Individual Rights in Education - July 17th, 2022 [July 17th, 2022]
- VICTORY: Art institute reverses expulsion for student who retweeted sexual art - Foundation for Individual Rights in Education - July 17th, 2022 [July 17th, 2022]
- Twitter and Freedom of Speech | News, Sports, Jobs - The Mining Gazette - Daily Mining Gazette - June 26th, 2022 [June 26th, 2022]
- Amber Heard, the ACLU, and the Future of Free Speech - Reason - June 26th, 2022 [June 26th, 2022]
- In my view: Freedom of speech is important - Slough and Windsor Observer - June 26th, 2022 [June 26th, 2022]
- New AGB Resource Prepares Higher Education Board Members to Balance Freedom of Speech with Diversity, Equity, and Inclusion - PR Web - June 26th, 2022 [June 26th, 2022]
- 'What's the point inviting me on!' Piers Morgan and student erupt in free speech row - Express - June 26th, 2022 [June 26th, 2022]
- Binance CEO says 'free speech is very hard to define' - Business Insider - June 26th, 2022 [June 26th, 2022]
- The Deeper Significance of Justice Thomas's Second Amendment Opinion - The Epoch Times - June 26th, 2022 [June 26th, 2022]
- Twitter and freedom of speech - Washington Times - June 22nd, 2022 [June 22nd, 2022]
- Bill of Rights to strengthen freedom of speech and curb bogus human rights claims - GOV.UK - June 22nd, 2022 [June 22nd, 2022]
- Twitter and the freedom of speech | Opinion | journal-spectator.com - Wharton Journal Spectator - June 22nd, 2022 [June 22nd, 2022]