YouTube Video Criticism: Journalism or Defamation

Before the internet became so prominent, criticism was contained primarily in newspapers and magazines.  This allowed critics to share their honest opinions about movies, television shows, and books, with some level of protection from defamation lawsuits because they worked for a newspaper which had both financial and constitutional protections.  But now that anyone can post a video on YouTube or on their own website, there is a less clear line between protected journalistic speech and libel.

This issue has recently entered the realm video game reviews. In March 2016, video game developer Digital Homicide filed a lawsuit against popular video game critic Jim Sterling for “a history of ‘assault, libel, and slander.’” Sterling posted a video about a Digital Homicide game on November 1, 2014, entitled “SLAUGHTERING GROUNDS – New ‘Worst Game Of 2014’ Contender.”  In the video, Sterling panned the game and its developer for many things, including using art assets purchased rather than created, poor graphical details, and an overall poor quality of the game.  His biggest criticism was that the developer was charging $9.99 for the game which he considered very poor quality.  A day later the developer posted a response video placing text over the original video making fun of Sterling and disputing his claims, to which Sterling responded a few hours later.  This went back and forth for a year and a half, with each side taking shots at each other in various forms, until Digital Homicide filed the law suit.

Recently the developer has filed a second lawsuit naming 100 anonymous users of the game website Steam for posting their own negative reviews of the developer’s games.  Steam is an online video game distributer that allows all video game developers to sell their games online.  The website also allows users to post reviews of the games.  After Digital Homicide served a subpoena to Steam demanding the identities of the users, it has since removed all Digital Homicide games from its store page, which has prompted Digital Homicide to explore a lawsuit against Steam.

This case raises interesting questions about how to deal with online criticism.  Sterling’s reviews and videos about the developer are very negative and no doubt have financially hurt the developers, but legendary film critic Roger Ebert said much more critical things about movies than Sterling and was never sued for defamation.  While Sterling is no longer backed by a major publication or website, by his own choice, his self-run website is no different than any other online critic.  He plays, reviews, and reports on video game news just like any other journalist, and while his reporting on Digital Homicide has been especially negative, that does not strip him of his protections as a journalist.  What the court will have to decide is whether his comments rise to a level where his speech goes from criticism to defamation, a high hurdle to pass.  The suit against the Steam users on its face seems like an overreaction, but online anonymous commenting has gotten to the point where users feel they can say anything and often do.  The Communications Decency Act § 230 grants content providers broad protection from user comments, and the subsequent cases arising from this statute have placed a high burden of proof on plaintiffs who want to sue, but the writer of that law never could have imagined the internet would turn into what it has today.  So these cases will be interesting to follow to see where the courts draw the line between criticism and defamation.

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