8. Chapter 8: Legal and Ethical Considerations

by Janaki Mythily Kumar and Mario Herger

"If you use the power of games to give people an opportunity to do something they want to do, then you're doing good. If you're using the power of games to get people to do something you want them to do, then you're doing evil."

— Jane McGonigal

 

When gamification enters the enterprise, the laws and regulations governing businesses apply to gamification as well, with severe consequences for non-compliance. Here are a few legal and ethical considerations that affect gamification in the work place. We recommend consulting your company's legal department (since neither author is a lawyer), to ensure that your gamification endeavors do not inadvertently violate any laws or ethics, such as labor laws, data privacy, etc.

8.1 Legal considerations

When creating global business software, it is important to consider not only the laws of your country, but all countries your software will be implemented in. This is indeed a daunting challenge with high probability of and consequences for error. Therefore, we recommend a flexible and configurable gamification design that provides rich capability for your customers to turn features on or off based on their regional policies or preferences.

8.1.1 Labor laws

Labor laws and employee protections vary across the world. Generally, in European countries like Germany there are many laws in place to protect employees. In addition, unions (footnote 1) exist even for white-collar office workers. These unions or workers' councils are allowed to interpret the laws (footnote 2) in order to maximize protection for the employee population. Traditionally, data collection about the employee is strictly monitored by workers' councils. They pay attention to the following questions:

  • What is the purpose of data collection and is the amount of collected data justified?
  • Where is the data stored?
  • Can the same purpose be reached with less data as well
  • Is the data anonymized or can it be assigned to individual employees?
  • Does the data serve as a basis for performance review decisions — and therefore influence decisions on salary increase, bonus calculations, promotions or layoffs?

These laws have a direct impact on gamification, since features such as leaderboards will need workers' council approval in each company. The council will need to be satisfied that such leaderboards will have no negative impact on an employee's performance review, wages or salary, or bonus plan.

Plan time in the schedule for such approval cycles and design the system in a way that gamification features (such as leaderboards) may be "turned off" if not approved, so as not to jeopardize the entire product release.

8.1.2 Data privacy laws

Data privacy laws vary globally as well. Generally, European laws forbid the collection, processing, and use of personally identifiable data, unless other laws and regulations explicitly permit or order it, or if the person involved gives his or her permission for such collection and processing of personal data. (footnote 3)

If the gamified system will be rolled out in countries with such protection, employees and customers should explicitly opt-in to have data collected on their behalf. Therefore, the default setting needs to be opt-out, so that the employee or customer must explicitly perform an action (sign a document, click a button or check a check box) to agree to their personal data being collected and used.

8.1.3 Virtual currencies and banking laws

There are many legal challenges and restrictions with regard to virtual currencies and assets. (footnote 4)The main discussions and the applicable laws and regulations circulate around these four questions:

  1. How was the virtual currency / asset acquired?
  2. How was it used?
  3. When was it used?
  4. Who used it?

There are a few examples of lawsuits involving operators of virtual worlds and currencies pertinent to gamification in the enterprise, such as Linden Lab and their SecondLife (Virtual Land Dispute, (footnote 5) Class Action Virtual Land Dispute,)) (footnote 6) or of social game companies like Zynga (Poker Chip Theft). (footnote 7)

Since the economic crisis of 2008, a number of stricter regulations have been introduced to offer more consumer protection, which regulates providers of financial services.

The main impact on gamification relates to the types of reward that may be offered as part of the gamified system. Could the player trade their virtual points with other players? Challenges such as virtual betting may be governed by gambling laws and state monopoly laws may apply.

8.1.4 Data ownership

Who owns the data? The answer to this question is still evolving in the courts. For example, Facebook has had to change its terms of use (footnote 8) in Europe based on lawsuits.

In the enterprise context, if an employee earns frequent flier points while taking business trips on behalf of the company, to whom do the points belong? Generally accepted business etiquette is to allow the points to belong to the employee but this is not a guarantee. In a professional community, if an employee earns points for their expertise, the company they work for directly or indirectly benefits from the employee's ranking in the leaderboard. If the employee were suddenly to lose this ranking, will this affect the company as well?

In summary, we recommend a conservative approach to data ownership, especially since the laws are still evolving. Employees and customers must have a say in what information is collected on their behalf, who sees the data, what is the purpose of this data collection, how much data is collected, and they must be allowed to opt out if they so choose (and in Europe, encouraged to opt-in, with opt-out being the default setting).

8.2 Ethical Considerations

Manuel Velasquez, Claire Andre, Thomas Shanks, S.J., and Michael J. Meyer from the Santa Clara University in California (footnote 9) define ethics as follows:

"Ethics refers to well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues."

This applies to gamification as well, and players need to be treated ethically, fairly and with respect.

Gamification is not a substitute for fair compensation policies. If employees are not paid fairly in accordance with market standards for the job they do, no amount of gamification will make them motivated at work.

8.2.1 Manipulating vs. Nudging

As Adena DeMonte, of Badgeville puts it:

"[..] gamification can never be successful exploitationware, because it only works when the behaviors that are motivated are behaviors that the user wants to perform in the first place. It's not some magic solution where you can manipulate users to perform behaviors against their will."

However, economist Richard Thaler and legal scholar Cass Sunstein, in their book Nudge Improving Decisions about Health, Wealth, and Happiness, (footnote 10) argue successfully that it is possible to encourage or nudge people to make "good" choices. Positioning fruits at the beginning and unhealthier food items at a remote position in a cafeteria, or setting the default option for choosing a health care plan to a government selected one, or setting the default to donate organs (instead of the other way round), are ways in which people can be supported to make better choices.

As gamification designers, we are social architects to some degree, and we need to take this responsibility seriously. Gamification in the workplace connects the virtual world to the real world, and decisions players make in the gamified system affect their real life outside the system. So use this power for good! Reminding players to recycle and turn off the light is using the power for good. While forcing people to purchase products and services they do not need using in-game purchase screens that will not go away, or making players' rights confusing and incomprehensible to them using legal mumbo-jumbo are examples of using this power for evil.

8.2.2 Player Cheating

We have news for you — there will be players who will cheat or try to cheat your gamified system (footnote 11). However, your job is to minimize the cheating and build a relatively cheat-resistant system to make it enjoyable for all players.

There are three strategies to reduce cheating.

  • Decreasing the perceived value of rewards
    • Use intrinsic rewards without transferable value in the real world
    • Use perks with low exchangeable value
    • Use rewards that have a large perceived-value differential between the target audience and the rest of the world
  • Increasing the effort required to game the system (no pun intended!)
    • Make combination of rewards metrics so complex, that gaming it cannot be understood (Google PageRank)
    • Metrics that are less susceptible to gaming
    • Time-bounded, unique-user-based reciprocity metrics (or TUUR metrics) -> e.g. # of Retweets
    • Time-bounded, unique-content-based reciprocity metrics (or TUCR metric) -> e.g. # of Likes
  • Total transparency and social shame and or accountability

8.3 Summary

Gamification is emerging as a strategic business practice. Gamification of global business software raises a number of challenging questions with regard to regional differences in laws and business practices. In this chapter, we provide an overview to the legal and ethical factors to consider as part of your gamified system. We recommend consulting with a qualified legal professional in your organization to alert you to potential issues you may not have considered to ensure the success of your overall gamification strategy.

8.4 Insights from SAP Community Network

Since SCN is a globally and publicly accessible community, legal disclaimers, terms of use, and data privacy statements needed to be implemented on a regional basis. For example, were the points earned by players solely their own, or did their employers have any claim to them?

In certain regions like Europe, more restrictive data privacy laws had to be considered. Players must actively opt-in to have their information made public, and to be able to participate fully in the community.

SCN worked with SAP's legal department to create documents to clarify content ownership, content standards, usage, responsibility in case of disputes, data privacy, etc. We continue to keep a watchful eye on the community to ensure it is a safe place for developers to thrive.

The end

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8.6 References