by Cristina Criscuoli, Elisa Rosati, Micaela Jerusalmi
How shall the eSports market deal with the protection of minors? What measures shall be adopted to protect investments and avoid risks?
The eSports market is rapidly growing and is quickly seducing an increasing number of fans. The growth of interest towards this charming world is also witnessed by the fact that the International Olympic Committee has recently considered to include eSports at the Olympic Games of 2024.
A great number of eSports fans – both among players and audience – is made up of minors. Just think about Dominique “SonicFox” McLean, only 16 years old, who won his first prize becoming champion of “Injustice: Gods Among Us” at the Evolution Championship Series (EVO), one of the most renowned competition in eSports.
The involvement of such a vast number of minors in eSports clearly raises some legal issues due to the need of ensuring a strong protection for them.
Below is an outline from the Italian law perspective of the situation concerning the protection of minors in eSports. In particular, we believe that two aspects should mainly be considered: contractual relationships involving young players and data protection issues.
How do Italian laws rule eSports contractual relationships involving minors?
When a contractual relationship involves minors, a high level of transparency and awareness should be granted. In this regard, the case of the young British Owen “Smooya” Butterfield, a famous eSports player, is a relevant example. Smooya signed a contract to be enrolled in an eSports team when he was still underage. At some point in his career, the 18-year-old “Smooya” would have wanted to move to another team, but he soon found himself trapped, due to the buyout clause contained in the contract between him and the team to which he was committed. Such clause provided for the payment of $ 100,000 for his release, a huge amount far beyond the real economic value of the contract.
No specific laws are yet in place in the eSports field and eSports is so far deemed to be an “amateurs sport”. The issue is therefore whether Law n. 91 of 1981 regulating professional sport activities can be applicable. Apart from such problem that remains open, the eSports field is mainly governed by self-regulations from associations created for the promotion of eSports.
But the scenario changes depending on the relevant country. France, for instance, recently approved specific regulations on various issues relating to eSports. In particular, the Decree 871 of 9 May 2017 provides for the specific protection of minors involved in eSports, e.g. stating that tournaments offering cash prizes are strictly prohibited to children under the age of 12 and the participation of minors is always subject to the authorization the holder of parental responsibility.
Since no specific laws are yet in place in Italy, reference has to be made to general laws aiming at protecting minors in contractual negotiation. Under sections 2, 316 and 1425 of the Italian Civil Code, the execution by the holder of parental responsibility over the minor is indeed required in order to permit the latter to enter into a contract. The agreement executed by a minor is considered voidable by Italian law, unless the minor has fraudulently hidden his/her minor age, according to section 1426 of the Italian Civil Code. Therefore, the minor – or the holder of parental responsibility over the latter – can challenge the contract once he/she has reached 18 years of age, within 5 years from this moment.
In this regard, some Italian Courts have even stated that signing sports contract should be deemed as an “extraordinary administration act”, meaning that the signature of the holder of parental responsibility over the minor would not be deemed sufficient and a specific decision by the judge about the opportunity of the minor entering into the contract should be taken, in order to ensure a stronger protection.
The above shows considerable uncertainties in relation to the regulation of eSports contractual relationships involving minors and the necessity of specific laws ruling such aspect.
How privacy and image rights of minors shall be dealt in eSports?
We recently witnessed a significant change in the data protection law field since the EU General Data Protection Regulation No. 679/2016 (the “GDPR“) became applicable on 25 May 2018, introducing innovative principles and rules and raising the level of protection granted to individuals’ privacy.
As foreseeable, specific provisions are dedicated to the protection of minors’ data by both the GDPR and Member States’ legislation, in order to avoid potential abuses of their privacy.
For this reason, operators acting in the eSports field should pay particular attention whenever minors are involved, both as players and as audience.
First of all, a high level of transparency must be ensured towards minors so that the relevant privacy information notice should be drafted in a very clear and simple way, in order to grant minors’ full understanding.
On the other hand, section 8 of the GDPR provides that – where the processing of personal data is based on the consent of the data subject – in relation to the offering of information society services directly to a minor, the processing of his/her personal data shall be lawful where the minor is at least 16 years old. When the minor is below such age, the processing shall be lawful only if and to the extent that consent is given or authorized by the holder of parental responsibility over the minor.
Nevertheless, according to section 8.3 of the GDPR, EU Member States may provide for a lower age for the aforementioned purposes to the extent that such lower age is not below 13 years.
Italy ratified such provision by means of section 2-quinquies of the Italian Privacy Code, stating that a 14-year-old individual may give consent to the processing of his/her personal data in relation to the direct provision of information society services.
Moreover, it is significant to note that also photographs and videos of individuals are also considered
personal data by data protection laws and that similar protection is also granted under section 96 of Law 633/1941, ruling the protection of copyright. Pursuant to section 96 of the above mentioned copyright law, the portrait of an individual may not be displayed, reproduced nor commercially exploited without the consent of such individual, except in specific cases provided for the said Law 633/1941.
In case eSports operators aim at using videos or photos of young players, specific contractual clauses can be drafted; nevertheless particular attention should be paid in case photographs or videos of minors are published. With a decision issued on 19 September 2017, the Court of Mantova held that the consent of both parents is required for the publication of their children’s photos.
Therefore, we believe that eSports operators should carefully assess any circumstance related to the processing of minors’ personal data (e.g. assessing whether the processing has to be based on the data subject’s consent and, if this is actually the case, put in place specific mechanisms to grant that consent is given or authorized by the holder of parental responsibility over the minor whenever the latter is not 14 years old) and of the image under copyright law in order to comply with applicable law.
What can we expect from regulators?
As stressed above, the scenario is still very uncertain. Such lack of regulation on the one hand might help the growth of the sector since it might limit regulatory restrictions, but on the other hand it might discourage investments since investors would not be certain about the return of their investments.
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