Forty or more years ago, society used the label of addiction for only a few things, hard drugs being the most recognizable. Today, people use “addicted” broadly in everyday conversations when discussing how much one likes chocolate, food, sex, shopping, gambling, and surfing the internet for example.
But what really counts as an addiction?
Today, more than 90 percent of children and adolescents play video games and many, if not most, of them spend substantial time playing (seven hours and seven minutes per week on average). A similar trend line can be found in adult behavior as well; adult gamers in the 26-to-35-year age group play for more than 8 hours per week, a 25 percent increase of the previous year’s statistics. Is video gaming a new addiction and will there be a wave of litigation as a result?
How Did We Get Here?
For decades, the public health community has sought to address life problems and issues of “global health” to protect and improve the health of people and their communities. The work of the public health community is achieved by promoting healthy lifestyles, researching disease and injury prevention, and detecting, preventing and responding to infectious diseases.
An important part of the public health community’s mission is the World Health Organization (WHO), which was established by the United Nations in 1948. The primary role of the WHO is to direct international health within the United Nations’ system and to lead partners in global health responses. According to WHO, it “works worldwide to promote health, keep the world safe, and serve the vulnerable.” The WHO collaborates with countries around the world, the United Nations, international organizations and foundations, academia and research organizations.
There should be no doubt that the work of the public health community towards these goals is a worthy pursuit. The investigation, testing, and warnings issued by the public health community has without exception educated and protected society from many harms, including foodborne illnesses, motor vehicle dangers, children’s toys and car seat carriers, infectious diseases, and workplace hazards.
The public health community’s expansion into advocacy, in addition to the benefits of research and education, often has practical and legal consequences (intended and unintended) tied to the public health community. In 1986, at an international conference held in Ottawa, “a broad new understanding of health promotion was adopted” under the leadership of the WHO called “the Ottawa Charter for Health Promotion.” Some authors have called it a “revolutionary shift” to “a new mind-set and professional ethos… for health professionals; their new role is to ‘enable, advocate, and mediate.’”
This 1986 Ottawa Charter seemingly initiated a tendency to vigorously advocate for and against things deemed to help or hurt the public health. In turn, that advocacy has led to litigation. For example, in March 2015, a report from the WHO’s International Agency for Research on Cancer said glyphosate, the main ingredient in Monsanto’s Roundup, is a “probable carcinogen.” Bayer, who purchased Monsanto in 2018, now faces over 18,000 lawsuits regarding the ingredient’s use. A California jury recently awarded a couple $2.055 billion in pain, suffering, and punitive damages after they alleged the glyphosate exposure caused their blood cancer. And the glyphosate lawsuits didn’t stop with Roundup; lawsuits were soon brought against major food manufacturers and retailers.
In the United States, the Surgeon General is the leading official on matters of public health. In 1988, the U.S. Surgeon General labeled cigarettes and nicotine addictive. Thereafter, the public health community began associating many other substances as addictive: chocolate, food, sugar-sweetened drinks, potato chips, and many others.
Behaviors, such as sex, shopping, gambling and surfing the internet also began to be labeled as addictive by the public health community in this same time period. Despite the colloquial labels calling these behaviors “addictive,” it was not until May 2013 when the American Psychiatric Association (APA) recognized “behavioral addiction” as the nomenclature for “gambling disorder.” Including behavioral addictions as mental health disorders opens up the door for all impulsive behaviors to qualify. It also provides a clinical excuse for people to avoid responsibility for their behaviors. “I couldn’t help it; I’m addicted.”
The internet, smart phones and video games have put electronics at the forefront of our lives, and, not surprisingly, the forefront of scientific and medical research and the advocacy of the public health community. Starting in 2014, the WHO Department of Mental Health and Substance Abuse organized four meetings to examine the public health implications of excessive use of the internet and other communications and gaming platforms. The WHO concluded that negative health consequences of excessive use of various electronic devices has reached the “magnitude of a significant public health concern” in an increasing number of countries.
In 2018, WHO released the 11th edition of the International Classification of Disorders (ICD-11). The ICD is the international standard for defining and reporting health diseases which includes psychiatric diagnoses and codes. As a result of the meetings and collaborations regarding excessive use of electronic devices, gaming disorder was included in ICD-11 as a behavioral addiction for the first time. It is defined as a clinically significant syndrome, manifested by impaired control over gaming, increased priority given to gaming over other activities, and continuation of gaming despite occurrence of negative consequences. In order to meet the diagnosis, the behavior pattern must be severe enough to cause significant impairment in social, family, educational or occupational areas of functioning.
The consequences of the WHO’s pronouncement are being felt in two important ways: First, the WHO’s declaration allows mental health professionals everywhere to assess risk factors and concentrate on prevention and treatment measures for those who meet the criteria of a gaming disorder diagnosis. Second, the WHO’s declaration has paved the way for litigation against everyone involved in the development, publishing and promotion of video games.
The WHO’s “gaming addiction” declaration also has implications for public policy changes. In early November 2019, the Chinese government released “Official Guidelines” aimed at preventing minors from indulging in online games. Everyone who wishes to play online games, adults and children, will be required to register their accounts in order to gain access to games and to help the government regulate playing time. Our society would not tolerate such formal limits on the freedoms of its citizens in order to restrict what some believe is a hazardous activity. The public health community’s advocacy, however, increases societal pressures and the WHO’s gaming declaration has ratcheted up the pressure on video games as the latest injurious activity.
The WHO’s “gaming addiction” declaration has generated litigation. In October 2019, a proposed class action lawsuit was filed in Montreal, Quebec on behalf of two parents who claim that their sons, ages 10 and 15, became addicted to Fortnite and that Epic Games, the publisher of Fortnite, designed the video game to be highly addictive thereby knowingly putting the health of their users in danger. The complaint’s allegations liken the addiction to a drug addiction, and cite to the WHO’s decision last year to classify ”video game addiction” as a disease. The Canadian class action lawsuit shows that the plaintiff’s bar is searching for the “next big thing” and the track record of the use of WHO declarations as a springboard for tort claims in the United States is well established.
The tag-along nature of lawsuits to a declaration from a member of the public health community begs the question of whether one body’s pronouncement is enough for purposes of legal causation and the imposition of liability by a court or jury. Put another way, is the WHO’s ipse dixit enough?
Is WHO’s Ipse Dixit Enough to Meet Legal Causation Definition?
It is well-known that to meet her burden of proof to establish causation, a plaintiff must offer admissible expert testimony regarding both general causation and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual’s injury.
Expert testimony is essential to establish both general and specific causation. Daubert teaches us that insistence upon “‘the most reliable sources of information’ is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.”
Whether an expert’s opinions have “widespread acceptance” is an “an important factor in ruling particular evidence admissible and ‘a known technique’ which has been able to attract only minimal support within the community may properly be viewed with skepticism.”
The WHO justified its decision to include gaming disorder in the ICD-11 by stating that it based its declaration “on reviews of available evidence and reflects a consensus of experts from different disciplines and geographical regions.”
Is There Consensus for Diagnosis in the Field?
In reality, the WHO blurs the line between reputable scientific conclusions and pure public health advocacy. There appears to be a lack of consensus on the scientific positions relating to what the WHO calls “gaming addiction.”
Indeed, many experts in the scientific community have voiced concern over classifying gaming disorder as a disease and urged the WHO to postpone their formalization until more scientific evidence becomes available. Interestingly, the WHO itself previously sounded this exact caution. In 2015, the WHO published a report titled “Public Health Implications of Excessive Use of the Internet, Computers, Smartphones and Similar Electronic Devices Meeting” that summarized their review of the health conditions associated with excessive use of various electronic devices, after their three-day meeting in Tokyo in 2014.
One conclusion they noted was the lack of empirical data to support a diagnosis of gaming disorder: “Epidemiological research in this field is faced with limited and often unreliable data.”
The WHO noted that no consistent epidemiological studies existed and too many methodologies and standards were being used causing a standard-less pursuit of science.
As recently as October 2019, the journal Clinical Psychological Science published a study by Oxford University’s Internet Institute which asks the question of whether the research on and scientific attention given to this “immensely popular activity is empirically justified.” “Judged on the basis of the evidence reported in this study, we would conclude it is not.”
Members of the WHO team, who were tasked with evaluating the available evidence, acknowledged that political pressure entered into the decision-making process for considering video gaming a disorder.
The APA publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM), which codifies psychiatric conditions and is used worldwide (although primarily in the United States) as a guide for diagnosing disorders. For various mental health conditions, the DSM is considered to be “the gold standard” for making clinical diagnoses. In 2013, the APA published its fifth edition of the DSM, DSM-5, and did not include gaming disorder as a formal diagnosis but made the decision to list Internet Gaming Disorder under the Conditions for Further Study section because the working group did not believe there was enough scientific support to endorse it as a formal disorder.
The DSM-5 states, “Other excessive behavioral patterns, such as Internet gaming, have also been described, but the research on these and other behavioral syndromes is less clear.”
Although the DSM-5 states that there is insufficient scientific data to warrant a formal diagnosis of internet gaming disorder, it lists nine proposed criteria to assess internet gaming disorder. Critics argue that these criteria were based on a drug addiction model and the features of addiction disorders may not be appropriate for gaming disorder. The terminology is similar, with the assumption that you can substitute the behavior for the addiction (e.g., “cocaine” to “video games”) without taking into account fundamental differences between the two.
Having a predetermined set of criteria based on substance disorders may interfere with the development of another conceptual framework that may be more suitable for problematic gaming. Addictive disorders are often chronic and progressive if not treated, whereas evidence suggests that excessive gaming is more episodic and transient. This is particularly relevant in terms of adolescent gaming use, where excessive gaming may be nothing more than a phase. If these criteria are going to be used in the future to assess internet gaming disorder, better operationalization, psychometric testing, weighting of criteria and severity measures will be needed.
Given the pervasiveness of gaming, it is likely that a percentage of users have foregone other daily activities (e.g., sleep, meal, shower, spending time with others) due to playing video games and perhaps for a handful, their gaming has been related to life problems. However, is there enough sound scientific evidence to understand the mechanisms and symptoms of excessive gaming and any related serious life consequences? Should a behavior that is outside the realm of “normal” be considered a mental illness or a disease?
In addition, critics argue that the clinical utility of a diagnosis of gaming disorder remains unclear. There is no evidence that such a diagnosis will lead to improved treatment. To date, there are no randomized, well-controlled studies for treatment of internet gaming disorder. Lack of evidence and lack of clinical utility could lead to an abuse of the diagnosis.
It behooves us to remember that “people are not big rats.”
No single study of any type can justify a claim that factor X causes health effect Y. Instead, any new finding must be considered in conjunction with the entire body of scientific evidence on the topic to determine whether causality is likely.
There is a lack of consensus in the scientific and medical fields as to how best to assess gaming disorder and whether the science is strong enough to support a diagnosis. If experts in the field cannot agree, then from a forensic and medical-legal perspective, where does that leave us in the courtroom?
How Have the Courts Tackled These Issues?
A review of case law reveals a smattering of decisions in which the issue of video game addiction or gaming addiction have been mentioned. Although many cases make reference to a party’s position or reference to a condition referred to as “video game addiction” or “gaming addiction”, we found none that discussed any objective criteria for the alleged condition and none in which a court or jury considered whether the term was a recognized condition or, much less, whether liability or fault could be imposed on a party for such a condition.
Seventh Circuit Judge Richard Posner famously noted: “The courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” As gatekeepers, judges will need to decide whether there is legitimate science to support a diagnosis of gaming disorder in the courtroom. Laypeople may not hesitate to agree that gaming can be habit-forming but in a court of law, science supporting an expert witness’s opinion must be based upon sound principles and methods, and sufficient, reliable data.
The goal of science is to test hypotheses. That process typically begins with an observation and proceeds to a hypothesis to explain the observation. This is followed by testing the hypothesis using sound methodology that is both valid and reliable. Once results are obtained, the process of peer review, publication and replication is followed. With respect to gaming disorder, one has to consider whether the science has progressed in that matter. Has the cart been put before the horse? Educating the judge on the current state of the science will be paramount in any litigation regarding a claim of addiction to video games.
For any manufacturer, and especially video game manufacturers, to successfully defend against tort claims, an in-depth analysis of the scientific and medical literature on any “condition” associated with its products is not only warranted but sure to be advantageous.
