VIDEO GAMES MONTH: Legal safeguards

Our resident legal expert, Hamlins' Ian Down looks at the advertising codes and the ratings system and which legal safeguards exist within the video games industry...
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At the tender age of 18, whilst being booked in at a small town police station in March this year, Devin Moore formerly of no criminal record suddenly snapped, stole an officer’s gun, shot that officer and then two others, including one clinical shot each to the head, took the keys to a cruiser and headed off at speed.

Moore had been playing Grand Theft Auto continually in the days before the shooting and told the arresting officers “Life is like a video game – everybody’s going to die sometime.” Notably relatives of the deceased are now taking legal action alleging that the game’s makers are responsible for producing a game which has incited the deaths.

Do video games encourage copycat killings like those committed by Moore? The debate continues to rage, with the ‘ayes’ supporting their court action by providing expert evidence that the teenage ‘brain wiring’ is susceptible to ‘reprogramming’ by continual video game playing, whilst the ‘nays’ will cite the fact, that to date, not a single court case in the UK or the USA has acknowledged a link between virtual violence and the real thing.

Either way it’s easier to say with less fear of contradiction, that common sense dictates there must be a real and present risk of harm to children from playing video games which include realistic images of violence and socially destructive themes.

So what legal safeguards are in place to prevent this and how effective are they?

Any video game needs to be publicised to sell, so this makes the UK advertising regime the first line of defence.

Under the UK advertising codes of practice administered by the Advertising Standards Authority, anyone under 16 is classified as a child. As a general principle, the codes require that all marketing communications addressed to, targeted at or featuring children should contain nothing that is likely to result in their physical, mental or moral harm.

A key difference between Advertising Standards Authority complaint-investigations and court proceedings, is that the burden of proof is effectively reversed. Once a member of the public complains that a game advert is likely to harm children and the ASA feel this may be justified, the advertiser must produce evidence as to why it won’t. If the advertiser can’t do so, the complaint is likely to be upheld and the advertising effectively prevented.

And so it’s transpired. There’s been a steady stream of investigated complaints about game-advertising causing offence and condoning violence, including an upheld complaint against Condemned 2 in September and one which wasn’t upheld against Grand Theft Auto 4; the latter avoided scenes showing inter-personal violence or graphic scenes of injury, showing that advertising control only provides a limited starting point for protecting children.

Another shortcoming of the advertising regime as a form of protection, is that it doesn’t extend to internet and Bluetooth communications, unless ads are in paid-for ‘space’. With blue tooth increasingly being the preferred means of transferring game-files, this gap in protection will only get worse.

A legal safeguard which is more immediate because it is added to the video game itself, is an age rating symbol.

The British Board of Film Classification (BBFC) has the power to impose legally enforceable age limits on games that depict certain violent or sexual behaviour, or to ban games completely. Until June this year with the banning of Manhunt 2, one would have been forgiven for thinking the BBFC’s power was more of an idea than a reality, the last game before that to be banned being as long ago as 1997.

There is also a self-regulatory system operated by PEGI, a non-enforceable pan-European system set up voluntarily by the video games industry and administered in the UK by the Video Standards Council.

But after long and intense Government-led debate as to whether the BBFC should adminsister a mandatory system in line with that for films (as favoured by the Government) or whether the PEGI system should simply become mandatory and whether for all age ratings or only the youngest, the matter is still unresolved.

This may be due in part because the prevailing view is that age rating of video games is not considered to be a sufficiently serious concern or useful legal strategy to devote too much time or resource towards implementing it. In turn, this probably reflects a limited public enthusiasm for confronting the issues.

As to other legal safeguards, court proceedings have been taken under copyright law to try to stop the illegal sharing of game files. But these have been infrequent and not always successful owing to the technical nature of copyright law. Whilst a successful prosecution was taken against a company which made a pinball computer game available to other users over a computer file-sharing network, the authorities were unsuccessful in prosecuting an individual who supplied modchips designed to allow a gaming console to play copied discs, losing that case primarily because it was wrongly pleaded.

The truth may be that regulators simply can’t keep up with technological developments and don’t know what more to do.

Trading Standards departments, particularly in London, have acknowledged that they can do little to dent the video-game counterfeiting activities of (mostly) Chinese and Balkan organised gangs, which of course will supply anyone with any game, however young and however potentially harmful the game.

Add to this the fact that downloading of games, whether via the internet or mobile consoles is likely to overtake and eventually replace discs, and the ability to detect, never mind police, consumption of inappropriate age-rated video games will inevitably get harder still.

But may be there is at least some hope; for example HMV is pioneering schemes which encourage legal video gaming in a socially inclusive yet responsible environment, by means of in-store digital download hubs and the Gamerbase centre at London’s Trocadero, billed as the most advanced gaming centre in the world.

Perhaps these and other schemes like it will become the favoured forum for gamers and fears of an orderless gaming world will simply not be borne out. If not, the problem of what legal strategies should be adopted to protect children from inappropriate games, won’t go away.

Ian Down is a partner in the entertainment, marketing and intellectual property department at Hamlins LLP, solicitors, in Regent Street, London and specialises in marketing and media law. Readers are advised that lawyers are like licensors – before you get a licence to rely on their advice you have to engage and pay them first. So please note that this article does not represent advice which may be relied upon or for which any responsibility is accepted by, the author or his firm.


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