By Jared Good, Esq.
Among the plethora of existing massively multi-player online, first person shooters (MMO FPS) games that exist today, Bungie’s “Destiny 2” is a heavy hitter. Around the world, tens of millions of players take on the role of a Guardian, protecting the last remnants of humanity from a multitude of intergalactic enemies. Bungie’s business model mirrors that of many MMO: release a base level game that provides countless hours of gameplay, but continue to update and release massive downloadable content (DLC) and purchasable content that enhances the player’s experience. To ensure that fans remain connected and allow for suggestions/complaints/bugs to be realized, Bungie makes use of “community managers” that act as liaisons between Bungie and the players.
One of Bungie’s community managers, D. Doe, promoted the artwork of a Black fan, UhMaayyze through one of Bungie’s promotions, My Destiny 2 Story, which focused on the contributions of community members. It was at this point that Defendant Jesse James Comer, an enthusiastic Destiny 2 player became incensed at the promotion of work by a fan of color. Around June 2, 2022, Comer began to actively terrorize the community managers and Bungie with a racist tirade. Comer added an additional number to his existing TextNow VOIP service, which allows a user to make anonymous calls. He then immediately called D. Doe and left an aggressive, bigoted voicemail. Following this, Comer called the community managers numerous more times, leaving additional voicemails for each. All Comer’s messages contained a similar sentiment, particularly asking for the community managers to make suggestions to Bungie for the implementation of a game mode where only persons of color would be killed.
Comer then began to threaten D. Doe’s wife, K. Doe. He left racist voicemails and texts, identifying himself as “Clay Branston.” For several hours, Comer continued to harass the Does, eventually deciding to up the ante. To show that he knew where they lived and that he could easily harm them at their home, Comer used an anonymous number to place a cash-on-delivery order with Domino’s. Comer requested a pizza that was basically inedible and left specific instructions for the delivery driver: “‘knock at least five times’ on the Does’ door because he would purportedly be wearing headphones and so would need loud, insistent banging to learn of the pizza’s arrival.” After verifying that the pizza was delivered, Comer left another threatening voicemail for K. Doe, telling her to “enjoy the pizza.”
Comer’s activity was deemed to constitute online harassment. Following a predictable model, online harassment usually begins with doxing – where the harasser obtains the target’s personal information to target them in real life – then to contact, and finally escalating to physical violence against the target. Comer’s conduct included activity within each section of the pattern. Comer doxed D. Doe before inundating his phone with racist and abusive messages. He then elevated his attacks, targeting D. Doe’s wife, K. Doe, with threats of violence. These culminated with the delivery of the inedible pizza and the threatening message to “enjoy the pizza,” showing that Comer had the ability to find and harm the Does in real-life.
Following the pizza incident, Bungie sent protection to the home of the Does, as well as contacting the local police department. After some investigation, Bungie was able to ascertain the identity of Comer and find his residence in West Virginia. Within a few days, Bungie was able to obtain a restraining order against Comer, while retaining round-the-clock security for the Does. Due to the incident, D. Doe had to curtail his interactions with Destiny 2 users, which is the core of his career. The harm suffered by Bungie wasn’t merely the loss of work by D. Doe, but that of many other community managers who feared similar harassment campaigns. Bungie was forced to take preventative steps to ensure other workers weren’t being targeted.
Bungie showed damages of $380,189.22 as a result from Comer’s harassment campaign – protection for workers, investigation of identity of the harasser, and in taking steps to stop the harassment. A default judgment was entered against Comer.
The Court found that Bungie had proven that Comer had interfered with Bungie’s contractual relations. Intentional interference requires: (1) a valid contractual relationship or business expectancy; (2) defendant’s knowledge of the relationship or expectancy; (3) the defendant intentionally interfered with the relationship or expectancy; and (4) damages to the plaintiff. Calbom v. Knudtzon, 65 Wn.2d 157, 159, 396 P.2d 148, 150 (1964).
The Does were found to be employees of Bungie. Comer targeted them knowing that they were employees. The Does were targeted specifically for their work and the promotion of Bungie’s message. Bungie suffered definite and measurable losses in the form of protection costs and loss of D. Doe’s work for an extended period of time.
The Court likewise found that Comer’s actions constituted a nuisance. “Whatever is injurious to health or indecent or offensive to the senses” is “subject of an action for damages and other further relief.” RCW 7.48.010. Nuisance is further defined as:
unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others … or in any way renders other persons insecure in life, or in the use of property.
RCW 7.48.120. Sufficient evidence was presented to show that Comer’s actions endangered the comfort, repose, health and safety of the Does. However, by extension of targeting the Does in connection to their employment relation with Bungie, Comer’s acts constituted a nuisance against Bungie itself.
Bungie alleged that Comer’s harassment campaign was in violation of the Consumer Protection Act.
To prevail in a Consumer Protection Act claim, a plaintiff must establish: (1) unfair or deceptive acts or practices; (2) that occur in trade or commerce; (3) that impact the public interest; and (4) that the plaintiff is injured in its business or property; (5) due to the unfair or deceptive act.
Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531, 533 (1986). Based on Comer’s conduct, only elements two and three were at issue.
Under Washington’s Consumer Protection Act, the legislature left the phrase “in trade or commerce” broad by including language of “the sale of assets or services, and any commerce directly or indirectly affecting the people of the state of Washington.” RCW 19.86.010(2). Washington’s Second Division Appellate court has held that the use of an auto-dialer to make political calls coupled with a “spoofed caller I.D.” constituted “trade or commerce.” Farrell v. Friends of Jimmy, 13 Wn. App. 2d 1134 (2020). The Court found that the facts presented here were practically identical, as Comer was using a spoofed caller I.D. to leave voice messages with the Does, but finding that Comer’s acts went even further as he managed to have a pizza delivered to the Does’ residence.
The Court agreed that the public interest had been impacted by Comer’s conduct. Washington state requires both a statutory and common law duty on employers to ensure a safe working environment for their employees. Vargas, 194 Wn.2d 720, 729. 452 P.3d 1205, 1211 (2019); see also RCW 49.17.010 et seq. Although the Does performed the majority of their work from their personal residence, employers retain a duty to protect even at-home workers from “reasonably foreseeable hazards due to their working at home.” OSHA guidance, e.g., 11/15/1999. Comer’s attacks against the Does interfered with their ability to have a safe working environment, thus giving Bungie grounds to seek compensatory damages in the amount that they spent to investigate and uncover Comer’s identity, while also protecting the Does.
Bungie’s next claim was based on invasion of privacy and intrusion on seclusion. The Court found that Bungie had pleaded a sufficient claim to prevail based on Comer’s conduct. In Washington, for an intruder to be found liable for invasion of privacy, the party “must have acted deliberately to achieve the result, with certain belief that the result would happen.” Fisher v. State ex rel. Dep’t of Health, 125 Wn. App. 869, 879, 106 P.3d 836, 840 (2005). Comer targeted employees of Bungie at their most private locales: their home and their personal phone numbers, while deliberately intruding upon their right to seclusion through his conduct. The Court found that Comer’s acts went beyond the “certain belief” requirement for intrusion, as he took steps to ensure that the pizza was delivered to the residence by monitoring its delivery and then calling the Does immediately after. The intent of his actions was meant to target Bungie for their promotion of artwork made by a black fan. By doxing the location of Bungie employees, his acts were meant to show that anyone in the company would be vulnerable to conduct.
Finally, the Court found that Washington’s policies against cyberstalking and telephone harassment supported awarding Bungie damages and injunctive relief against Comer. To violate the Washington Cybercrime Act, a person is guilty of:
‘cyber harassment’ if that person, with intent to harm and intimidate any other person … makes an electronic communication to a person or third party and the communication is made anonymously or repeatedly; contains a threat to inflict bodily injury … and would cause a reasonable person to suffer emotional distress or fear for their safety, and did cause the threatened person to suffer emotional distress or fear for their safety.
RCW 9A.90.120(1).
Likewise, telephone harassment was already outlawed in Washington state. Under RCW 9.61.230, use of a telephone is outlawed where the intent is to “harass, intimidate, torment or embarrass any other person” through the use of “lewd, lascivious, profane, indecent or obscene words or language” or calling “anonymously or repeatedly or at an inconvenient hour, whether or not a conversation ensues” or “threatening to inflict injury on the person of the person called or any member of his or her family or household.”
To allow Bungie to recover damages to prevent further harm caused by Comer follows the rationale that the legislature enacted to give power to the courts to craft decisions that would help to further the policies. Finding Comer liable would constitute an effective enforcement of the law to prevent harm to the citizens of the state.
Lastly, Bungie provided sufficient evidence to sustain the granting of an injunction. In Washington to obtain injunctive relief, the party must establish three elements: (1) a clear legal or equitable right; (2) a well-grounded fear of immediate invasion of that right; and (3) that the act complained of will result in actual and substantial injury. SEIU Healthcare 775NW v. State, Dep’t of Soc. & Health Servs., 193 Wn. App. 377, 393, 377 P.3d 214, 221 (2016). The Court didn’t evaluate the claim in depth, as Comer had stipulated to injunctive relief at the beginning of the action, thus injunctive relief was proper.
Ultimately the Court found that Comer was liable for money damages of $380,189.22 for the principal balance; $25,000 in statutory damages pursuant to the Consumer Protection Act; $3,806.30 in attorney fees; $200 in statutory attorney fees; and 12% post-judgment interest accruing per annum, for a total money damages judgment of $489,435.52.
The decision against Comer is a potentially important development within the video game field as employers can continue to protect their employees against threatening attacks by disgruntled players. With an increased need to promote values in society that accurately depict a multicultural county, it is not unforeseeable that cases like this could pop up going forward. With a sound legal precedent, Washington can protect their video game industry, while promoting opportunities for inclusion and growth.
