Online Cheating and Human Rights

Online Cheating and Human Rights

| 2

This guest blog post is by Salomėja Zaksaitė, Professor of Sports Law at the Institute of Management and Political Science at the Mykolas Romeris University, Lithuania. Salomėja Zaksaitė has the WGM title.

Salomeja Zaksaite

This blog post will undertake an analysis of multiple interwoven themes that are united by a “common denominator,” namely human rights and online cheating. The right to a fair trial, the right to self-expression, and the right to reputation will be touched upon. In the context of these rights, an attempt will be made to derive some insights that may be relevant to the public.

Online Cheating and the Right to Fair Trial

The right to a fair trial has been a very sensitive topic recently, not least because certain online accounts are being blocked largely based on statistical evidence. Some controversial cases are not “open secrets” but are the stories of specific athletes, like Ukrainian player Yuliia Osmak. That case is later examined. In other words, the right to a fair trial in the context of e-cheating goes hand in hand with the issue of the standard of proof. This will be discussed below.

The question of fair trial and the resulting (declining) standard of proof is one of the most problematic procedural issues in online chess. This is mostly because it is hard to gather persuasive physical evidence. The procedural challenges may also be exacerbated by the application of the doctrine of strict liability in the proof of e-cheating: the subjective element (mens rea) of fault is generally not proven. This is understandable: computer algorithms assess the objective actions of the athlete, just as the biochemical tests of an anti-doping laboratory only assess what is in the sample, not whether the athlete intentionally or unintentionally provided a sample that contained the prohibited substance.

The standard of proof is described as follows: the disciplinary authority has the burden of proving that there has been cheating. The standard of proof shall be whether the disciplinary authority proves cheating to the comfortable satisfaction of the hearing panel, taking into account the seriousness of the allegation. This standard of proof is higher than the balance of probabilities but lower than “beyond reasonable doubt”. The model rule for the standards of proof in the e-sports is entrenched in Article 6 of the Code of Conduct of the E-Sports Integrity Commission.

There are other challenges in proving e-cheating (in addition to putting aside the subjective aspect of the infringement as mentioned above). In particular, we can speak of an “inflation” (and the subsequent devaluation) of the concepts of cheating, and by extension, of the standard of proof. One such case took place at the World University Individual Online Rapid Championship, where Ukrainian player Yuliia Osmak was disqualified for “suspected fair play violation”. According to the rules of the competition, she could not challenge the disqualification, nor could she appeal the decision of the Fair Play Panel (FPP). The Competition Regulations stressed that “suspected fair play violation” cannot be equated with actual cheating, and disqualification is limited to the tournament in question and does not affect the status of players outside of the tournament.

As expected, though, there has been a lot of a stir surrounding the Osmak incident despite the relatively minor punishment. It is worth mentioning that FPP disqualified 20 (!) players from this Championship for breach of fair play. Not surprisingly, the pace of remote competitions calls for quick decisions and the traditional legal process is not suitable.

However, reputational damage can also arise from the (supposedly less legally binding) online competitions and the simplistic process of proving online cheating. Public opinion is unlikely to make much effort to distinguish precisely between “cheating” and “suspected fair play violation”. Accordingly, such a quick process, combined with the extremely simplified rules of the competition (which, as mentioned above, did not include a right of appeal), implies that the “balance of probabilities” – that is to say, the lowest standard of proof – was met. Whether the burden of proof can be lowered by just changing the terminology from “cheating” to “suspected fair play violation” is still up for debate. Human rights advocates would likely argue against that.

The event’s organisers and the international federation would respond, on their part, that the current challenges – particularly those associated with the pandemic period – have necessitated a review of the legal procedures, their simplification, and their acceleration. Speed was achieved at the price of the quality of the legal work, but the event still took place.

Online Cheating and Freedom of Expression

Lowering the standard of proof may, on the one hand, help tournament organisers to preserve the (supposed) integrity of their tournaments, but on the other hand, it could have major repercussions for the reputation of the players and the sport of chess in general. The widespread allegations of e-cheating, even at the highest level, are no longer surprising.

One of the most recent examples (among many) is GM Kramnik’s implication that GM Nakamura may have cheated. Meanwhile, recent stories featuring GM Viih_Sou as the protagonist fluctuate somewhere between absurdist comedy and melodrama. Even more surreal, in chess there is no strict separation between e-sport and sport; the same players play both; so, we can talk not only about inflation of the aforementioned standard of proof, but also about inflation of fundamental sporting principles, such as respect for the opponent; respect for the organisers of the competition and the fair play measures.

Such an inflation would be hard to imagine in a game like football, for example, where there are relatively clear limits to what can and cannot be publicly said. Below are examples from football where certain penalties have been imposed for seemingly smaller infringements of freedom of speech.

In 2016, Mourinho was sanctioned for implying match officials were biased against the Barclays Premier League champions in comments made following the October 3 loss to Southampton. Mourinho was found to have brought the game into disrepute as a result of commenting about the appointed match official prior to the game, for which he was fined £50,000.

In 2019, Silva was fined £50,000, suspended for one match, and ordered to attend an educational course by the FA for an offensive tweet which he posted about his teammate Benjamin Mendy. An FA statement said: “The Manchester City midfielder’s social media activity on 22 September 2019 breached FA Rule E3(1), as it was insulting and/or improper and/or brought the game into disrepute, and constituted an ‘Aggravated Breach’, which is defined in FA Rule E3(2), as it included reference, whether expressed or implied, to race and/or colour and/or ethnic origin.”

In 2022, Tuchel was found to have brought the game into disrepute as a result of making comments that crossed into personal accusations of bias or lack of impartiality and was fined £20,000. “The manager admitted that his comments after their Premier League match against Tottenham constitute improper conduct as they imply bias, question the integrity of the match referee, and bring the game into disrepute.”

It should be mentioned for independent thinking that the football legal jurisprudence is not always the one that has to be followed. Naturally, I do not support a bizarre scenario in which anyone can say nearly whatever they want about anybody. And yet, it is worth noting that such a scenario is not totally impossible. This insight is based on the particular case law of the European Court of Human Rights (ECtHR) – which, as the examples described below show, can be tolerant of pretty harsh public discourse.

One of the first examples is Case No. 20834/92 Oberschlick v. Austria (1997). During that legal battle, it was examined, among other things, the extent to which the use of the word “idiot” (“Trottel” in German) could – or could not – be tolerated. This case established that under Article 10(2) of the European Convention on Human Rights, freedom of expression extends not only to “information” and “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb (29 §). Whereas in Feldek v Slovakia (2001, No. 29032/95), the ECtHR argued that (even) the expression “fascist past” is subject to multiple interpretations. “Nor can the Court subscribe to a restrictive definition of the term ‘fascist past’. The term is a wide one, capable of evoking in those who read it different notions as to its content and significance. One of them can be that a person participated in a fascist organisation, as a member, even if this was not coupled with specific activities propagating fascist ideals (86 §).”

Thus, if we look at what is going on in the chess world through the prism of human rights, we could say that there is a very vibrant public debate on the suspicions of cheating as well as anti-cheating policies, especially in the case of online chess. Perhaps that discussion will lead to some improvements; however, it is worth noting that in such a case, the entire chess community needs to be armed with a high level of tolerance and to lower the bar for the personal insults. Still, it would be wise to draw a line between genuine concerns about the state of affairs, specific accusations, and trash talk, even in a highly tolerant community.

Concluding Insights

To sum up what has been written, from a procedural point of view, it is quite difficult to reconcile the strict liability rule with fair trial requirements. In my opinion, it should be possible to apply statistical algorithms (as the sole evidence) to impose administrative rather than disciplinary sanctions. Accordingly, administrative penalties should have less legal and social weight; they should be tournament-specific. This would at the same time draw, at least formally, a line between e-sport and sport: the widespread paranoia (as well as trolling) about cheating should not be extrapolated from online to OTB, as different models of proof would apply and different gravity of sanctions would be imposed. The distinction between administrative and disciplinary sanctions has been highlighted by the Court of Arbitration for Sport in the Skenderbeu case (CAS 2016/A/4650, 1, 51, 105 §). However, there’s no guarantee that in this scenario the public realm wouldn’t muck things up as well.

The public discourse on chess is quite “spicy”; it is not comparable to football, but it might be comparable to the discourse on human rights, where the right to self-expression may be valued more than the right to reputation. With this in mind, the chess community functions within a quasi-political arena that is rife with numerous benefits and drawbacks, thus warranting a (re)consideration. Returning to sports discourse, parallels can be drawn not only with politics or the public sphere, but also with much more “edgy” sports. Historically, in boxing or other combat sport, athletes have been and still are allowed to make various heated statements that have little to do with respect for the opponent or human rights. So, the sport of chess, although very specific, should not necessarily be spoken in an apocalyptic tone: it is true that in chess, relatively heavyweight phrases are thrown around, but this can be seen as a kind of transition, or simply as an impetus for rethinking of the interplay between sport and e-sport.