Facial scanning and videogames: a new legal controversy


The increasing interaction between videogames and gamers has become an essential element for that industry, offering a more real and customized experience through face scanning technology. Its use, however, has not been free from controversy. In fact, such interaction is based on using a person’s image, which implies obtaining the appropriate authorization from those concerned.

Whether this authorization exists is precisely one of the recurrent causes of dispute in this area. The last example is the recent decision of  New York’s federal judge John Koetl on the lawsuit against NBA 2K creator, Take-Two, by two gamers for using of their respective digital avatars, which are generated by a facial scanning system available to players in the videogame itself.

The gamers, who took the role of the plaintiffs, alleged that by collecting their image to create the characters within the videogame, Take-Two had obtained their consent by means of confusing and incomprehensible terms, and that they were concerned seeing that their right to privacy was being violated. The judge rejected this argument and dismissed the lawsuit because they failed to demonstrate that Take-Two had disseminated or sold the plaintiffs’ biometric data, and because harm suffered was not specific. In fact, in his decision the judge considered that recreating the gamers’ image was not intended for commercial exploitation but that it merely offered gamers the possibility of using it in-game at will.

This decision is in line with the United States Supreme Court decision on Spokeo v. Robins, in which the high court established certain restrictive criteria when reviewing this type of claims, particularly in terms of defining the actual existence of harm against those involved as a result of the digital use of their image.