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By Steven J. Ellison, Esq. | Reviewed by Joseph Fawbush, Esq. | Last updated November 15, 2021
Yes, but you have a steep battle. First, the terms of use of most video games require you to agree to binding arbitration and a limitation on any recoverable damages. Those contract provisions are broad enough to include any claims you might bring for gaming addiction. But depending on where you are, if you are a minor who bought the game with your own money you may be able to "disaffirm the contract," void the arbitration provision, and bring a lawsuit.
If you do manage to get to court, you still have a major challenge: experts in the United States are split on whether gaming addiction is an actual disorder. A court therefore might not allow you to recover damages for it. But a talented personal injury attorney may be able to persuade a judge that you should recover for the harms you suffered.
Video gaming is one of the most popular recreational activities in the country. According to the Entertainment Software Association, which represents the video game industry, roughly 227 million people in the United States play video games. Two-thirds of all adults and three-fourths of all kids play them weekly. 80% of players are over 18. About half (45%) are female and the average age of a player is 31.
It’s a social activity, too. 65% of video game players play with others. Adult video game players spend more than six hours per week playing with others online and four hours per week playing with others in person.
So it’s no surprise that video gaming has become big business. In 2020 alone, people in the United States spent a record $49 billion on video game content.
Video games are entertaining, but you can end up killing a lot of time playing them. In fact, there can be all sorts of negative consequences for gaming too much. People lose money. They lose jobs. They can lose relationships.
But can video games really be “addictive"? That is a question that psychiatrists, researchers, and other health care professionals haven’t resolved.
In the United States, the American Psychiatric Association (APA) publishes the Diagnostic Statistical Manual of Mental Disorders (DSM-5), which is the authoritative volume that defines and classifies mental disorders. In 2013, when the last edition was published, the APA decided that there was not enough evidence to determine whether gaming addiction was a unique disorder or how to define it.
The APA did determine, however, that “internet gaming disorder" was worthy of further study. The proposed symptoms of the condition include the following:
You would have to experience five or more of these symptoms within a year to fall within the contemplated condition. Most people who develop clinically significant symptoms game online, but the condition might arise through the use of any electronic device, such as phones, handhelds, consoles, or personal computers.
In late 2017, the World Health Organization announced that the upcoming edition of its International Classification of Diseases (ICD-11) would recognize gaming disorder as a new disorder. According to the ICD-11, gaming disorder is characterized by a pattern of persistent or recurrent online or offline gaming behavior that shows:
The pattern is normally evident for more than at least 12 months and results in marked distress or significant impairment in important areas of functioning, such as personally, socially, or at work.
According to a study published in the International Journal of Mental Health and Addiction, 1.4% of those who play video games are “addicted gamers." Other studies suggest that the percentage may be higher (even as high as 9%). That equates to more than three million people in the United States.
The Mayo clinic has described how a video game may become addictive. There is a chemical in the brain called dopamine that is released whenever we experience success or achievement.
Dopamine is powerful stuff. It helps maintain interest and attention, which is why it may be so hard to put that game controller down. It’s also self-reinforcing. That means the more interest you experience, the more dopamine is released, and so on. This process can actually lead to long-term or permanent changes in the brain that require extensive treatment to reverse.
Litigation against game manufacturers is still relatively new. But there have been two big cases against Epic Games, the maker of Fortnite.
Fortnite is an online video game released by Epic Games in 2017. There are three different gaming modes, but Fortnite Battle Royale may be the most popular. You parachute onto an island with 99 other players and battle it out until there is only one person left. You use v-bucks, which is a virtual currency you can earn in-game or buy with real money, to customize your character.
Fortnite Battle Royale became an overwhelming success. It gained more than 125 million players in less than a year. As a whole, Fortnite generated $9 billion in gross revenue through 2019. It is cross-platform, which means you can play it on a console, computer, or even an iPhone or an Android phone.
The first highly publicized case against Epic Games was filed in 2019 by Alessandra Esposito Chartrand, a lawyer at the Calex Legal law firm, in Quebec Superior Court in Montreal. She brought a class action lawsuit on behalf of parents of two minors, claiming that the game developers at Epic Games hired psychologists to help make Fortnite as addicting as possible.
The plaintiffs further allege that Fortnite is as addictive as cocaine and that the more people played, the more hooked they became, which ultimately resulted in gaming addiction. As of November 2021, the Canadian class action is still pending.
This is not the only class action against Epic Games for Fortnite. One of Fortnite’s three modes, Save the World, used to have what are known as loot boxes. Loot boxes contained randomized items, which gamers could buy in-game using v-bucks.
As part of a class action settlement in the Superior Court of North Carolina in February 2021, players now get to see what those items are before they make an in-game purchase.
If your doctors believe you are clinically addicted to a video game, you may be able to take legal action against the game’s manufacturer. But there are a number of really significant obstacles.
The first obstacle to a lawsuit is that when you install a game or create an online account, you need to agree to the terms of use. That forms a contract.
One of the typical terms is that any dispute you have with the game manufacturer will be resolved through binding arbitration. That means that you do not get to go to court. Instead, a person called an arbitrator listens to both sides and resolves your dispute.
Most courts enforce arbitration provisions. However, if you are bringing a lawsuit on behalf of a minor who funded the game or online account with their own money, you may be able to what’s called “disaffirm" the contract. That means the minor would no longer be bound by the terms, including the arbitration provision, and could sue in court.
The second obstacle is that just like arbitration, virtually all games’ terms of use contain a limitation on recoverable damages. That’s typically the amount you paid for the game or, for an online game, the amount you spent on it for the previous year. If you’re a minor who can disaffirm the contract, you may be able to seek damages in court that exceed this limitation.
But if you’re not, you’re probably stuck. Going to court, even if you could get around the arbitration provision, would probably cost more than you could recover. It might not be worth it to sue.
The third obstacle, which may be the biggest, is even if you can get to court, and even if you can get past the limitation on damages, you are still left with the elephant in the room. Is gaming addiction even an injury you can recover damages for?
As noted above, the U.S. medical community has not reached a general consensus on whether gaming addiction is a disorder. Courts are generally reluctant to get ahead of the science and, until such time as the APA does change the DSM-5, may not allow you to recover for a condition that hasn’t been generally accepted as a disorder by the U.S. medical profession, even if the WHO says it is.
That is not to say you don’t have an argument, especially given the WHO’s take. An experienced product liability lawyer would be of great help. People brought lawsuits against tobacco companies before it was generally accepted that smoking was addicting and, over time, courts permitted them to recover.
Others have successfully brought product liability lawsuits against pharmaceutical companies. They have claimed that medicines they took caused them to develop a gambling addiction. They were permitted to recover not only the money they lost to gambling, but also punitive damages (which are damages intended to punish wrongdoers for outrageous behavior). The damage awards were substantial.
So there is arguable precedent here for lawsuits.
At this time (probably in part because of the lack of consensus on whether gaming addiction is a real thing) game manufacturers generally do not contain warnings in their terms of use that provide legal notice of a potential risk of addictive behavior. Until they do, a skillful plaintiffs’ lawyer may be able to take advantage and successfully sue for damages for failure to warn of this risk. But be prepared for the argument that such product liability theories don’t apply to computer software.
As you can see, gambling addiction is a medically and legally complicated subject. But both medicine and the law recognize that at some point, gaming can become a serious problem for some people.
If you or a loved one shows symptoms of a gaming problem, after consulting a mental health professional, you may want to get legal help from an experienced personal injury attorney in your area. They can help you understand your rights, go over your options, and decide what road if any you should take.
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