Briefing Note. Computer Game Rating Systems in the UK

Transcription

1 Briefing Note Computer Game Rating Systems in the UK July 2008

2 The Situation On 23rd May 2008, MCV reported that the Entertainment and Leisure Software Publishers Association (ELSPA) had decided to favour the Pan-European Game Information (PEGI) video game classification system and instructed its members to ignore any request from the British Board of Film Classification (BBFC) to change the current age ratings process. This could put the two game rating systems on a collision course as they compete for 'market share'. This article explains why the UK uses two different rating systems, how the different systems work and how the system could change because of recommendations made by the Byron report and other events. The UK Games Age Rating System The UK computer games industry currently uses two different age rating systems. Games producers use the PEGI rating system on a voluntary basis for all video game titles published in the UK and, at the same time, may also use the BBFC system to classify 'adult' games which require a mandatory rating under UK law. Even though the PEGI system is a voluntary system, console manufacturers will not allow games to be published for their system if they have not been rated by either the BBFC or PEGI. Similarly, the vast majority of UK retailers will not stock games that have not been classified by one (if not both) of these rating systems so, in practice, publishers will always seek classification under one of these systems. system.) In 2007, PEGI launched PEGI Online, a website offering age-rating advice, information and services, with a view to giving young people better protection against unsuitable gaming content. The PEGI age rating system is meant to replace existing national systems with a single, harmonised system that is identical throughout Europe. In addition to games purchased through conventional retail channels, the PEGI ratings apply to games sold over the Internet, played or downloaded within an online gaming environment, or provided on magazine cover discs. The PEGI game rating appears on the front and back cover of the game packaging. The system itself has two separate elements. The first is an age rating with 3+, 7+, 12+, 16+ and 18+ age bands. The second element comprises a number of game descriptors which are displayed as icons on the back of the game packaging and which describe content that may be found in the game. Bad language Discrimination Drugs PEGI The PEGI age rating system was established in 2003 with the intention to help European parents make informed decisions about buying interactive games. The age rating system was developed by the Interactive Software Federation of Europe and the PEGI system is supported by the European Commission who sees the new system as a model of European harmonisation. PEGI applies in 25 European countries including the UK (but not in Germany which has a legally mandated age rating Fear Gambling Sex Violence PEGI uses a combination of online submissions and game viewing to determine the appropriate PEGI

3 rating. Initially the publisher will complete an online form sent to NICAM (Netherlands Institute for the Classification of Audio Visual Media) which has been contracted by PEGI to check the ratings. In the UK, the Video Standards Council (VSC) acts as an agent of NICAM. The completed form is reviewed and if the provisional rating is 3+ or 7+ and there are no logical errors, NICAM will grant the right to affix the age rating logo. If the proposed rating is 12+, 16+ or 18+ NICAM will view the game to confirm that the proposed rating is correct. The addition of game descriptors to a games packaging is at the discretion of the publisher and is not mandated by NICAM. If a publisher (or a member of the public) is unhappy with the rating the game received, it can appeal to an independent Complaints board. This board is made up experts in child protection, child psychology and representatives of religious groups, parents' unions and teachers' associations. The decisions of the board on an age rating are final. If, as a result of a complaint, the Complaints board finds that a game requires a higher age rating than has been previously granted, PEGI require that the game must be immediately withdrawn by the publisher from sale until the game packaging can be reprinted with the correct age rating. This could be a significant cost to the publisher and PEGI hopes that this will encourage publishers to err on the side of caution when submitting a game. However, as PEGI is a voluntary system, it is not currently an offence to sell a PEGI rated game to someone under the PEGI age rating awarded to that game. In all instances, the voluntary PEGI system is subordinate to the pre-existing, wider framework set up, run and enforced by governments to ensure the protection of minors. As a consequence, The PEGI system is subordinate to all existing and future laws and regulations in this area, which in the UK is the system run by the BBFC. BBFC system The Video Recordings Act 1984 establishes the requirement for "video works" to obtain an age classification before they can be sold in the UK. Section 1(2) of the act defines a "video work to mean "any series of visual images produced electronically by the use of information contained on any disc, magnetic tape (or any other device capable of storing data electronically), and shown as a moving picture". This definition is wide enough to capture all video games sold on a physical medium (not "download only" games) but section 2 goes on to exempt video games from classification unless they depict: human sexual activity or acts of force or restraint associated with such activity. mutilation or torture of, or other acts of gross violence towards, humans or animals. human genital organs or human urinary or excretory functions. This effectively means that games with gross violence, criminal or sexual activity have to go to the British Board of Film Classification (BBFC) for a statutory classification before they can be released in the UK. This accounts for around 4% of games and reduces the likelihood that games of this nature will be submitted for PEGI classification since any such game will, as a matter of UK law, require mandatory BBFC classification. The BBFC ratings process involves a play-through of all submitted video games prior to allocating a classification. Decisions are based on both the content and the context of games and account for UK sensitivities only, which are established following extensive public consultation. It is a criminal offence,

4 punishable by up to six months in prison and/or a fine of up to 5,000 to sell or hire BBFC classified games to someone under the age classification. In some instances, the BBFC can also choose not to classify a game. The effect of this is to make it a criminal offence to supply that game in the UK. In 1997, the BBFC refused to classify the game "Carmageddon" on the grounds it encouraged antisocial behaviour. This decision was later overturned on appeal, subject to certain modifications to the game. Likewise, in 2007, the BBFC took the decision to refuse to classify the video game Manhunt 2 because of its callousness and sadism. Another (modified) version of the game was submitted and this too was rejected for the same reasons. The distributor of the game appealed this decision to the Video Appeals Committee (VAC), which found in favour of the distributor. The BBFC applied for judicial review, as a consequence of which the presiding judge required the VAC to reconsider its decision. The judge ruled that the VAC had exceeded its powers and made errors in law and ordered the VAC to reconsider its decision. The VAC reconsidered the appeal in light of the High Court's directions on the law but decided again to allow the appeal and to require the BBFC to award Manhunt 2 an 18 certificate. The Byron report The Byron Review was delivered on the 27th March 2008 to the UK Government by Dr Tanya Byron, a child psychologist. The review focused on the use of videogames and the internet (particularly social networking websites) by children, and addresses issues of age-classification. Dr Byron accepted that parents require better information on the content of video games in order to assess the suitability of games for their children. The report also acknowledges that a number of measures already exist to inform parents and children about video game content. However, Dr Byron was of the opinion that improvements could be made to simplify and reform the age classification system and to raise awareness among parents about age-rated games. To this end, she recommended changes to the existing age-classification system so that the statutory requirement to classify games be extended to include games aimed at the 12+ market. Although Dr Byron accepts that are a number of perspectives on the different possible approaches to classification and that change will require full public consultation, in the context of the review, she advocates a hybrid classification system in which: BBFC logos are, where required (i.e. 12+ games), displayed on the front of games packaging. PEGI will continue to rate all 3+ and 7+ games and their equivalent logos (across all age ranges) will be displayed on the back of all games packaging. The Report also recommended: that consultation on changes to the classification system, underpinned by clear plans for potential legislative change, should be under way by the autumn of sustained high-profile and targeted efforts by industry to increase parents understanding and use of age-ratings and controls on consoles. co-operation among retailers to develop and implement a more consistent approach to the sale of video games and better in-store information for consumers, including focused efforts to monitor enforcement of the statutory age-ratings at the point of sale. joint initiatives by the advertising and video games industries to improve guidance on the appropriate targeting and content of video game adverts in line with age classification. co-operation between console manufacturers to raise standards in parental controls on consoles. that the government supports a dialogue between the industry and the education sector to identify opportunities for the benefits of game-based learning to be evaluated in educational environments.

5 that under the direction of the Council, the BBFC and PEGI work together to develop a joint approach to rating online games and improving safety standards for children and young people. The Report's timeline recommends that the BBFC and PEGI should agree and publish standards for managing safety in online games by spring 2009 The German System Germany does not use the PEGI system and like the present BBFC system, uses a mandatory system. If the Byron Report is implemented, the UK will move to a more regulated system similar to Germany. In Germany, under the German Youth Protection Act (Jugendschutzgesetz), age rating is mandatory for all video games available on any type of physical data medium like CD and DVD. The rating label must be displayed on the box of the game, on the data medium itself (with exemptions possible if the nature of the data medium, e.g. size of a cartridge, makes it impossible to display the rating label) and also on any website through which the video game is distributed. This requirement to display the rating label applies regardless of whether the game is sold on a physical data medium or simply made available for download on the individual website if the game is also available on a physical medium. In dealing with demo versions, the Youth Protection Act provides for a somewhat simplified procedure in the event demo versions of games are distributed on physical data media bundled with printed periodicals (i.e. game magazines). Whilst demo versions generally share the age rating accorded to the entire game, but a separate rating is possible if the demo version or trailer significantly differs from the main game (e.g. if the game itself is rated 16+, then a trailer/demo containing significantly less and/or milder violence might be rated 12+). If the demo is "download only", then it would not normally need an age rating since it is not available on a physical data medium. However this only applies if the final game will also be "download only" and not be available on a physical data medium. If the final game itself is supposed to be available on a physical data medium, then that medium is bound to contain the demo as well. Latest Developments As well as the Byron Report, the European Commission has also published its opinion on what it regards as the next steps, which affect Germany as well as the UK. Also BBFC have emulated PEGI by launching a service to provide a rating system for online content. European Commission On 22nd April 2008, the European Commission published a communication on measures to protect children from harmful video games, following a survey of all 27 member states. The communication makes a number of recommendations including the development of a new code of conduct by the video games industry and improvements to the PEGI system. The main recommendations are: Member states should ensure that effective, proportionate measures for the protection of minors should apply and mutually reinforce each other. Member states should integrate into their national systems the information and classification system put in place in the framework of PEGI and PEGI online. The video games industry should take steps to improve the PEGI and PEGI Online systems; in particular it should regularly update the criteria for age-rating and labelling, advertise PEGI more actively and increase the list of participants. There should be cooperation on innovative ageverification solutions between member states classification bodies and other stakeholders.

6 The video games industry should agree within two years on a pan-european code of conduct on the sale of games to minors and on commitments to raise awareness of the PEGI system among parents and children, as well as ensuring adequate resources to implement such a code. Efforts to achieve a self regulatory or coregulatory cross media, pan-european age rating system will be encouraged. BBFC Online In May 2008, The British Board of Film Classification launched BBFC Online, a voluntary regulatory classification scheme for online films, programmes and computer games (although "download only" games do not, under UK law, require classification as a matter of law). The scheme is aimed at distributors and new-media distribution channels. It is platform-neutral and covers digital content delivered via the internet, settop boxes and portable media devices. Walt Disney Studios Home Entertainment Europe, Warner Bros. Entertainment Inc. and 20th Century Fox Film Corporation were the first major players to join BBFC Online and there are already around 700 videos certified by the scheme. Aggregators such as e-tailers and video on-demand suppliers will be required to provide point-of-sale information under the scheme's rules, as well as age-verification and gate-keeping mechanisms. This type of classification system was one of the many recommendations set out in the recent Byron review. The Future The industry is now in an 18 month period of consultation following Dr Tanya Byron's recommendations. Her recommendations that the BBFC take a more active role in the ratings of computer games were, according to Dr Byron, at the urging of the video games retailers. She stated that the retailers "very strongly" backed BBFC logos on the front of all boxes to assist with "parental confusion at the point of sale". However, soundings taken by ELSPA show that 90% of its members would prefer a single, uniform ageclassification system in preference over the current hybrid model. Of those favouring a single system, ELSPA reports that 75% prefer PEGI over the BBFC. To back this view up, EA and Microsoft have been vocal in their criticism of Dr. Byron's proposals that the BBFC should take on a greater role in classifying games. Both companies have expressed concerns that Dr. Byron's proposals could lead to a greater lag time in games publication and, ultimately, result in an increase in the retail price of games. If anything, the BBFC has been even more vocal in denouncing these criticisms, with BBFC's director David Cooke stating "We are disappointed and concerned about attempts by one or two videogames publishers to pre-empt, through recent press statements, the forthcoming public consultation on videogames classification". The BBFC points out that its classifications are often cheaper than comparable PEGI classifications and that it is a larger and better resourced organisation, which is better placed to take account of national sensibilities. ELSPA's view is that there can be no "implementing" of the Byron recommendations until they have been permitted to make PEGI's case in full in the coming consultation process. ELSPA maintains that the appointment of a BBFC Byron implementation officer whose brief it will be to contact PEGI and interested trade bodies as well as the country's game companies with a view to implementing the Byron report is unduly hasty. This recent activity and ELSPA's complaints that the BBFC are moving too fast indicates that the recommendations made by the Byron report are not automatically perceived by everyone as the best way forward. The consultation over the next 18 months could prove very interesting as the two different rating systems (one favoured by ELSPA and the European Commission, the other favoured by retailers and the general public) fight it out. James Baker, Paralegal Osborne Clarke

7 Contacts For further information, please contact: Paul Gardner, Partner t: Phil Lee, Solicitor t: