Video games have long been the scapegoat of politicians and media campaigns. Whilst the majority of the focus has been upon the depictions of violence within games, the furor over Grand Theft Auto’s infamous “Hot Coffee” scandal and subsequent legal wrangling brought on board the potential controversy of depicting explicit sexual acts in games. (Rockstar had at one stage planned to include a sex-based mini-game in the title. The plans were scrapped, but the code for them remained hidden in the game. When a PC enthusiast learned how to access them, instructions on how to access the content quickly spread across the internet, with an outcry following closely behind.)
A recent survey in the US in November of last year (see Rasmussen Reports: 54% Think Violent Video Games Lead to More Violence in Society) indicated that the majority of Americans (54% in the sample) believe that violent video games result in a more violent society.
Following Panorama’s recent expose of how engrossing games apparently are, we can now throw addiction into the pot. Please read on for further information.
The US remains governed entirely under a system of self regulation – as yet there is no federal law against the sale of violent or sexually explicit video games to children (although certain states have tried to introduce legislation). The US system relies on the voluntary ESRB (Entertainment Software Rating Board, an independent body) rating system which rates titles and polices the marketing of games. The system relies on goodwill- that of retailers and the ESRB – so there is nothing, as a matter of law, to stop kids buying violent games. Attempts have been made by at least two states to ban the sale of violent games to children, but free speech legislation has to date blocked such attempts. The Californian Supreme Court is to rule later this year on whether such a ban would be legitimate.
The UK has a mandatory system for certain types of video games depending upon the content. Games featuring sex or violence must be submitted for classification by the British Board of Film Classification (BBFC) in accordance with the Video Recordings Act 1984. The role of digital and interactive media was elaborated in the Criminal Justice & Public Order Act 1994, which introduced a number of new tests to the classification process, including a specific requirement to consider the ‘harm’ that the work may cause a potential viewer.
Video games remain generally exempt under the Video Recordings Act 1984 (VRA). However, the exemption will not apply if that game depicts:
- may encourage criminal activity (or other “matters of concern”); and/or
- where the depiction of such material is particularly realistic.
The VRA was introduced at a time when games could not hope to rival the imagery of movies and films, but given the increasing visual fidelity of current and next generation videogames and the considerable crossover of interactive and traditional media entertainment, this exemption is of increasingly little value.
The attitude towards classification in the games industry has shifted over time and as a result, many publishers submit each and every new game to the BBFC to ensure the game has been classified before publication.
Following the arrival of the Digital Economy Act, legal powers have been granted to the PEGI (Pan-European Game Information) rating system with effect from 1 April 2011 and PEGI will become the sole classifier for video games in the UK. Any retailer who sells games after that date to anyone younger than the age certificate on the front of a game’s box is liable to prosecution.
In addition to the UK’s own mandatory age classification scheme, the PEGI scheme is a voluntary age suitability scheme aimed primarily at advising parents. In the UK this scheme is supported by UKIE (the Association for UK Interactive Entertainment, formerly ELSPA) and all its members are required to submit all games which are exempt from BBFC classification for classification under the PEGI system. In contrast to the BBFC system, publishers are required to fill out a self-assessment application form, based upon the content and provide their own suggested age rating which is verified upon receipt.
The PEGI scheme currently covers sixteen countries within Europe, with Germany being the most notable absentee, as it relies upon its own compulsory classification procedure. Some other countries also use their own classification systems (e.g. Finland) and the ratings in these countries are adjusted accordingly. In essence, the PEGI scheme provides a useful guide to the likely classification of a release for publishers in Europe.
Both the BBFC and PEGI systems are fundamentally aimed at the protection of children and young persons and therefore employ a system of age classification. Publishers are strongly advised to consider submitting new games to the BBFC if they are in any doubt as to the content, as unlike the PEGI scheme, it is a criminal offence to supply illegal unclassified works or to supply age restricted material to persons under that age with fines and/or prison sentences for any person found in breach.
The BBFC will only classify the product and, where necessary, advise on cuts that need to be made. The BBFC cannot rule on the legality of the content, but in any event they will not classify material that they believe is in breach of the law.
Any submissions made under the PEGI scheme will be required to consult a checklist of the type of content that is likely to require mandatory classification. Whilst the checklist on the application form should not be taken as a complete summary, it does provide further guidance of the type of content to be wary of. It should be noted however that the age classifications under the BBFC and PEGI schemes do not necessarily match.
The law in relation to what is illegal is judged according to whether the material in question is legally obscene. Fortunately, whilst the Obscene Publications Acts were crafted in the early 1960’s, the test is judged according to the contemporary standards. The test is simply whether the effect of the material (considered as a whole) is “such as to deprave and corrupt persons“. There is no set definition; it is not enough that the publication shock or disgust, it must have a morally debasing, corrupting effect upon the viewer.
The requirement that the material be taken as a whole, rather than in relation to a specific item of content, considerably reduces the scope of the law in this area. In practice, the law of obscenity is rarely used, as mandatory classification has for the most part dealt with this issue. The key factor is the intended audience for the material. In light of this, publishers may wish to consider the material which is contained on a games website, given the difficulties of restricting access to a particular age group over the internet.
The BBFC Ratings
Given the generally balanced approach to censorship in the UK, the barrier as to what is and is not permissible within a video game is largely a decision for the publisher, depending on the market they are aiming for. The increasingly mature audience of the gaming market means that publishers may feel they can afford to release games that are restricted to the over 18 audience without taking a major hit in sales, as the Grand Theft Auto series ably demonstrates. If explicit sexual scenes are a feature within the game, the publisher can expect an ’18’ classification and be treated by retailers accordingly.
The BBFC publish guidelines on a regular basis and these should currently be the first reference for any developer or publisher wishing to have a better understanding of the likely classification of an intended release. Given the impending legalisation of PEGI, regard should also be had to PEGI rating system.
Because R18 material is reserved for highly explicit sexual material, it is difficult to see how any video game would fall into this category without a concerted effort on the part of the developer and publisher. Clearly any game featuring explicit sexual material must be submitted for classification by the BBFC.
The Current Regime
Whilst the “Hot Coffee” hidden mini game in GTA: San Andreas may have (and continues) to cause its publishers problems in the US, the game had already received an 18 certificate in the UK by the BBFC; there is nothing to suggest it would be treated differently under the BBFC’s guidelines if this material had been an intended part of the final game. This is in stark contrast with the reception abroad – in Australia and New Zealand for instance, two territories that closely follow UK law across a wide range of areas, the game was either banned or given an R18 rating in response.
Given that the fundamental basis of the age classification schemes is the protection of children, it follows that PG, 12 and 15 rated works will require greater scrutiny on the part of the developer/publisher to ensure that the game meets the required classification. Looking at the BBFC’s most recent decisions this is likely to affect magazine publishers who may bundle a mixture of demos and videos on cover mounted disks and wish to sell the magazine to the broadest audience available.
A comparison of “Psychonauts” – rated PG, “From Russia with Love” – rated 12 and “Resident Evil 4” – rated 15, shows that even strong violence may not automatically result in an 18 certificate. However, a title featuring strong sex/violence within a realistic setting, particularly featuring criminal related activity, for example the Grand Theft Auto series, will inevitably be aimed at an adult audience and be rated accordingly.
Unfortunately there are no hard and fast rules as to what particular type of content will lead to a particular rating, but an awareness of the above issues will provide a better understanding of how the system works. Publishers and developers would be well advised to bear in mind the intended rating from the start of a project to avoid any future headaches further down the line.
Since the screening of Panorama’s investigation in December of last year into the addictive nature of computer games, there is now a suggestion that games publishers are to be blamed for the adverse consequences (eg. to health and/or career) suffered by gamers who play their games for so long that they fail to eat and sleep. Not surprisingly, no clear evidential and genuine link was established in this programme between addiction and video games, nor frankly is there likely to be. This situation is surely one of parental control: if parents permit their children to play video games day and night, just as if they permitted them to drink unlimited amounts of alcohol, a problem of addiction is clearly going to ensue. And for those over the age of eighteen, they should be old enough to take responsibility for their own actions.
1. The BBFC website provides information and guidance on the classification scheme, application forms and a database of previous decisions.
2. PEGI (Pan European Game Information) website provides further guidance on the ratings system and downloadable assessment forms for publishers.
3. The Video Standards Council provides some additional advice on what is covered by the VRA, as well as practical advice for retailers.
Brian Miller Solicitor is a specialist in interactive entertainment and media law.
©Brian Miller 2011. This article may not be reproduced without the prior written permission of the author.
This article reflects the current law and practice. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.
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