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Games & Gaming

Ratings Bored: the long wait for the VSC to take the reigns as the UK’s games rating authority may not be over just yet…

March 2010

There Can Be Only One

Whether it’s the notorious “No Russian” level in Call of Duty: Modern Warfare 2, the full frontal male nudity in Grand Theft Auto IV: The Lost & Damned or the fantasy violence of God of War III, much non-industry media coverage tends to focus on the games designed for adult gamers, usually in the context of the effect they may have on children. Not only is this disproportionate – after all, less than 5% of games sold in the UK are 18-rated – but it misses the point that boxed games are subject to a comprehensive classification system and if they find their way into the hands of children, then perhaps the retailers or (more likely) the purchasing habits of parents should be under scrutiny, rather than the games industry as a whole.

Currently, video games are rated by way of a dual system. If a game includes “mutilations or gross acts of violence or torture towards humans or animals”, or depictions of “sexual activity or sexual organs” or “techniques likely to be useful in the commission of offences” then it must be classified by the British Board of Film Classification (BBFC) under statute.

As the vast majority of games are exempt from the legal requirement to classification by the BBFC, games producers also voluntarily self-certify games using the Pan-European Game Information (PEGI) “traffic light” age-suitability rating and content logos, which highlight any elements such as violence, bad language, sexual references or depiction of drug use contained in the game. As a voluntary system, this clearly lacks teeth and so, following the Digital Britain consultation, the Government proposed giving the Video Standards Council (VSC) legal powers to enforce classification of video games and a single rating process using the PEGI system.

Digital Economy Bill: “Wash-Up” Or Wash-Out

The VSC's authority over video game classification will be formalised in the Digital Economy Bill, which, at the time of writing, has just completed its Third Reading in the House of Lords (thereby completing all stages in the Lords before its move back down to the Commons).

Parliamentary commentators believe that the Bill will get its second reading in the Commons before 6 April 2010, the day that Gordon Brown is expected to request for dissolution of parliament from the Queen in advance of the General Election. By doing so, the Bill would become eligible to go into the "wash-up" process, in which bills that have run out of parliamentary time can be progressed quickly to royal assent with co-operation from the Opposition.

Fears that the Bill could pass into law without proper debate have led to online protests – not in respect of the game classification system, which is widely accepted as beneficial, but because the Digital Economy Bill also includes the controversial proposals to enable “temporary suspension” of internet connections for those who are deemed to have ignored warnings from their internet service providers about illegal file-sharing and have continued to undertake such activity. Accordingly to citizen advocacy website 38degrees.org.uk, over 12,000 members of the public have - to date - used their site to send emails to their MPs urging them to demand a debate over the Bill when it returns to the Commons.

Although Harriet Harman, the leader of the Commons, did suggest in a tweet earlier in the month that the Bill will be debated (“rest assured. Will do it before election. H”), a "proper" debate would take so long that it would effectively kill off the Bill, at least for the time being and in its current form.

Closing One Loophole…

Regardless of whether or not the Digital Economy Bill achieves royal assent, concerns about the enforceability of the current statutory classification regime have at least been allayed with the passing of the Video Recordings Act 2010 (VRA 2010) earlier in the year.

During preparatory work for the Digital Economy Bill, it came to light that the Video Recordings Act 1984 (VRA 1984) - which provided the framework for the BBFC ratings system - had not been correctly enacted. The Act was passed shortly after a European Directive designed to facilitate the free movement of goods in the EU came into force. The Directive contained a notification process whereby the European Commission would have to be informed by any member state seeking to pass national legislation which could constitute an obstacle to free movement, before such legislation could take legal effect. Any proposed statutory classification system would therefore have to be submitted to the Commission before it could be correctly enacted - something which the Government at the time failed to do in respect of the VRA 1984, rendering the legislation unenforceable and enabling unscrupulous distributors to sell and supply unclassified videos and computer games to any age group (although, in practice, most retailers agreed to observe the regulations voluntarily).

The VRA 2010 rectified the situation by re-enacting the VRA 1984 after giving the required notice to the Commission.

…But Leaving One Open

However, the VRA 2010 only re-enacted the previous legislation with minor amendments; it did not fill the gaps in the existing law – the largest being that the VRA 2010 only appears to apply to games supplied on disc or other physical media. The latest draft of the Digital Economy Bill doesn’t deal with the issue, and so if the Bill is enacted and the new ratings process adopted, it remains unclear whether digitally distributed games will require classification.

This is an area of the games industry which is growing significantly and recent analyst figures show the market share of downloaded games by value overtaking that of traditional boxed product by 2012.

In practice, this is unlikely to have much of an impact on the games console market as it currently stands - Microsoft, Sony and Nintendo comply rigorously with ratings requirements and, for example, all have a policy not to allow AO games to be released for their consoles in any format. Major developers – such as Square Enix, who recently announced that the next Tomb Raider game, Lara Croft and the Guardian of Light will be a digital-only product - will no doubt also want to be seen to act in accordance with the PEGI system, just as they do now, even though it is currently a voluntary process. However, this is feasibly something that developers of controversial games for the PC market may seek to exploit.

However, the more technology advances, the more the law lags behind. If the claims made by developers of cloud-based gaming systems, such as the OnLive Game Service or GaiKai, turn out to be true and it is possible to successfully stream games remotely without any physical media changing hands, then this loophole could become more than just a legal “blind spot” with little practical consequence, but a concern to the industry which requires further legislation to plug.

If you have any questions or would like to discuss anything in this article in more detail, please contact Andy Moseby at Kemp Little LLP on 020 7600 8080.