Although games take place in a digital, virtual world, gamers and game developers, do not find themselves in a lawless space. Therefore, it is logical to consider games and game behaviour in the context of criminal law. In this context, the main criminal provisions in computer games will be explained below, and it will be shown where the borderline of behaviour permitted under criminal law lies.
Representations of violence
Article 135 of the Swiss Criminal Code, which contains the prohibition of violent depictions, is particularly important for game developers and designers. A wide variety of acts are prohibited, including producing and marketing violent depictions. The article of the law refers to particularly cruel depictions in which the infliction of severe physical and psychological suffering (on humans or animals) is the main focus. These depictions must be forceful and seriously violate the elementary dignity of human beings. Consequently, not all depictions of violence are covered by the criminal provision, but only the most brutal ones. The threshold of what is punishable is accordingly high. Since games can fall under the provision of the law, the production and marketing of particularly cruel games are punishable. The mere consumption of the content, however, is not sanctioned.
The Swiss Criminal Code makes attacks on a person’s honour punishable by law. In legal terms, honour is essentially understood as a person’s reputation and sense of being a “decent” person. Not every negative expression or behaviour towards a person is punishable. Instead, the statement must be of some consequence. If someone is merely called a bad gamer or an unfair gamer, the threshold of a punishable violation of honour is not reached. Moreover, the statement must always refer to a specific person and not an undefined group. Offences of defamation can be committed in different ways. First, defamation and character defamation (Art. 173 and 174 SCC) are among the punishable forms of conduct. Anyone who expresses or spreads untrue (defamatory) facts about a person are punished. In contrast, the offence of defamation (Art. 177 SCC) punishes defamatory statements. In computer games, defamation offences are committed primarily in chats or online forums in the form of insults.
The law provides a penalty for those who put anyone in terror or fear by making a severe threat (Article 180 SCC). However, it depends very much on the circumstances under which the statement is regarded as a serious threat. Thus, even threats that are not meant seriously are punishable if the perpetrator pretends to be able to influence the occurrence of the threat. In any case, the threat must be capable of frightening the victim and therefore be of a certain severity. Serious or less serious threats of any kind in online forums or chats can thus be considered threats in the eyes of the Criminal Code.
The offence of coercion is, to a certain degree, more severe and far-reaching than the threat. In this case, someone is forced to engage in a specific behaviour through the use of violence, the threat of serious consequences, or “other restriction of freedom of action” (Article 181 SCC). In a virtual game environment, coercion by force or restriction of freedom of action is generally not possible, as the offence must be directed against a (real) person. However, the commission of the offence by “threat of serious disadvantages” is probably more important. As explained in the previous section, the threat does not necessarily have to be meant seriously, and the disadvantages envisaged must be of a certain severity. For example, a gamer who threatens another gamer to force them to engage in a specific (real-world) behaviour is committing a crime.
Terrorizing the population
According to Article 258 SCC, anyone who threatens or feigns danger to life, limb or property and thereby terrifies the Swiss population is liable to prosecution. The perpetrator must publicly convey the impression that a real or fictitious danger exists. As a result, a larger circle of people must feel threatened, which is why the threat must at least appear serious. In this respect, a certain seriousness of the act is also assumed here. However, a sharp dividing line between the permissible and the impermissible cannot be drawn. In the game environment, scaring the public can be committed, for example, through messages in computer games. For instance, in games with radical right-wing content, a real threat to members of certain ethnic groups or denominations may be communicated. This can meet the criteria of Article 258 of the Criminal Code and have criminal consequences for game developers. However, the threat must be taken seriously, so the threshold for criminal behaviour in this example is relatively high. The criminal offence is fulfilled in the case of serious, threatening statements via mass media.
Public incitement to crime or violence
Anyone who publicly incites to commit a crime (or offence involving violence against people or property) is punished under Article 259 SCC. The incitement must be insistent and thus suitable to induce the recipients to commit a criminal offence. Furthermore, it must be made public, which is the case if the call is directed at a larger or indeterminate group of persons. The conduct is also punishable if the call is not complied with. A public call in the virtual world to commit a crime in the real world is generally punishable. Thus, corresponding incitements in computer games, chats or online forums can have consequences under criminal law.
Racial discrimination in connection with computer games is currently particularly explosive. Article 261bis of the Criminal Code makes racial discrimination a punishable offence. It covers behaviour that disparages or discriminates against people of a particular ethnicity, race, religion or sexual orientation. The penal provision covers the most diverse forms of conduct, which in principle, must take place in public. Incitement to hatred and discrimination, the dissemination of discriminatory ideas and, in general, discrimination or disparagement are punishable. Here, it depends very much on the individual case whether a behaviour is punishable or not. After all, the act or the statement must have a certain gravity. In the context of games, the development and publication of computer games that incite hatred and discrimination or serve to disseminate discriminatory ideas, for example, are associated with consequences under criminal law. In addition, caution is required in chats and online forums that are publicly accessible.