Pinsent Masons is highest ranking professional services firm in FT Diversity Leaders 2020 report
Out-Law Guide | 15 Jun 2005 | 11:42 am | 8 min. read
The issue of a possible link between violence in computer games and the rising trend of antisocial behaviour in society is an ongoing debate. In 2005 the gaming industry witnessed an enormous amount of pressure from critics over titles such as Grand Theft Auto: San Andreas. The emergence of a patch for San Andreas that unlocked a hidden sex mini-game gave critics like Hilary Clinton the weapon they needed to show how inappropriate some games can be for minors, albeit without the patch the hidden games were inaccessible. The game was given an AO (Adult Only) rating and dropped from retailers around the U.S.
In the same year, the State of Illinois voted to introduce legislation to ban the sale of violent or sexually explicit video games to children in Illinois, a move other states and cities have tried but federal courts have repeatedly struck down. The move was in direct response to the video game "JFK Reloaded" which puts the player in the role of President Kennedy's assassin. Commenting on the legislation, Democratic Governor Rod Blagojevich stated that "in today's world, parents face unprecedented challenges in monitoring and protecting their children from harmful influences. This bill will make their job easier".
Under the legislation, retailers who knowingly sold adult video games to minors could be fined $1,000. They could defend themselves by showing they did not know the buyer was a minor or that they followed the industry ratings on the games. However, in December 2005 the proposed law was blocked by a federal judge who said it was unconstitutional and thus reflected an approach previously adopted by the courts. For example, in an earlier case a federal judge struck down a Washington state ban as a violation of free speech because it prohibited selling to children video games depicting violence against police officers but not other depictions of violence. Federal courts have also struck down bans in Indianapolis and St. Louis County, saying the measures encroach on the First Amendment. The judge in Washington state also determined the ban was too broad because it was unclear which games would be banned. But supporters of such laws insist the government has a duty to help parents shield children from violence and sexuality. "Don't let them become the monsters that we see in these violent games" Democrat Monique Davis has said.
The Entertainment Software Association (ESA) also took a stand against a bill signed in October 2005 by Arnold Schwarzenegger in California. In 2006, a US District Court judge struck down yet another law that banned the sale of violent or sexually explicit video games to minors. The Michigan law was signed by Gov. Jennifer Granholm in 2005. It imposes both civil and criminal penalties to anyone who is found to have distributed a violent video game to a minor. Federal District Judge George Caram Steeh issued his ruling in Detroit in April 2006 saying that video games were protected under the first and fourteenth amendments.
At present in the US, there is no federal law against the sale of violent video games to children. However there is a system of self-regulation governed by the Entertainment Software Rating Board (ESRB). The ESRB is a self-regulatory body for the interactive entertainment software industry established in 1994 by the Entertainment Software Association (ESA), formerly the Interactive Digital Software Association (IDSA). ESRB independently applies and enforces ratings, advertising guidelines, and online privacy principles adopted by the computer and video game industry. The Entertainment Software Rating Board (ESRB) ratings are designed to provide information about video and computer game content, so consumers can make informed purchase decisions. ESRB ratings have two parts: rating symbols suggest age appropriateness for the game, and content descriptors indicate elements in a game that may have triggered a particular rating and/or may be of interest or concern.
Under the ESRB rating system titles rated M (Mature) have content that may be suitable for persons aged 17 and older. Titles in this category may contain intense violence, blood and gore, sexual content, and/or strong language. One such game with the M rating is "Grand Theft Auto: San Andreas" which requires the player to steal a police SWAT team tank, machine gun rival gang members and incinerate employees of a rival crack dealer. Concerns that the games industry is failing to protect children are heightened with publicity surrounding cases such as that of David Thompson who claims that a previous version of Grand Theft Auto inspired him to kill three police officers when he was only 16. Thompson reportedly told police "life is a video game. You've got to die sometime", before he opened fire.
Thompson was able to get hold of the game despite the recommended age of 17 being prominently displayed on the cover of the game. Under the ESRB rating the content descriptors for the game included "blood and gore", "intense violence", "use of drugs" and "strong sexual content". Even though mature games are labelled with the "M" rating, there are no legal mechanisms in place preventing children from buying or renting them. The National Institute of Media and the Family has found that 87% of pre-teen and teenage boys play games rated "M". Unlike the motion picture industry, the video game industry has not developed an effective self-regulation system that keeps adult material out of the hands of children. In 2003, the Federal Trade Commission found that 69% of teenagers were able to purchase M-rated video games – giving them easy access to images many adults would consider offensive. The FTC also found that not only are children easily purchasing violent and sexually explicit games, 10 of the 11 companies it studied produced at least one marketing document specifically targeting boys under 17 for a violent, M-rated game. Adrian Fenty, a member of the Washington DC City Council who recently introduced legislation that would ban the sale of violent and sexually explicit games to minors, said the games industry's current rating system is ineffective, "it's a rating system without any penalties … it's like any other law that doesn’t have teeth – it just does not accomplish what it is supposed to" Fenty said.
In contrast to the system in the US, in the UK video games that depict "gross violence", "sexual activity" or "techniques likely to be useful in the commission of offences" must be classified under the British Board of Film Classification's (BBFC) film rating system under the Video Recordings Act of 1984. The Act provides that it is an offence to supply such a game to anyone below the age limit, punishable by a fine of up to £5000 or up to six months in prison. However, in the region of 90% of all titles released on to the market are exempt from this legal classification.
In addition, the majority of games are rated under the Pan European Game Information System (PEGI). Under this voluntary code games producers self-certify the content of their games by giving them an age rating as well as a series of symbols which represent various types of content. All games applying for a 12+ age rating under this system are retrospectively reviewed and can be assigned 16+ or 18+ ratings. These ratings are then checked by an independent body before being confirmed. However, the PEGI rating structure lacks teeth because, as a voluntary system, it is not an offence to sell a PEGI rated game to someone under the age rating. Further, research indicates that most UK consumers are unfamiliar with the PEGI ratings system and often find the symbols more confusing than helpful.
Former Trade and Industry Secretary, Patricia Hewitt, says that adult videos and computer games should carry clearer warnings to stop them falling into the hands of children. Miss Hewitt said that Britain already operated the toughest classification system in Europe but some parents might not be aware of the risks of buying "18-plus" games for children, she added "Adults can make informed choices about what games to play. Children can't and they deserve to be protected".
According to industry statistics, a majority of computer game players are over 18, with the average age of a gamer being 29. Academics point out that there has not been any definitive research linking bloodthirsty games such as Grand Theft Auto with violent responses in players. In a report published for the Video Standards Council, Dr Guy Cumberbatch said: "The research evidence on media violence causing harm to viewers is wildly exaggerated and does not stand up to scrutiny". Dr Cumberbatch, head of the social policy think tank, the Communications Research Group reviewed the studies on the issue. He concluded that there was an absence of convincing research that media violence caused harm.
Most recently, the government commissioned a report headed by renowned psychologist Dr Tanya Byron into the influence of video games and the internet. The Byron Report, released in March 2008, makes a number of recommendations regarding the classification of video games.
The report recommends that a lower threshold should be introduced for judging whether or not games must be classified under the BBFC system. The threshold proposed in the report would capture games which include, amongst other things, graphic violence towards fantasy characters, sexual innuendo and mild bad language.
A further proposal in the report is that all games should carry a BBFC rating symbol (ie 18, 15, 12, PG or U), including those which are only classified under the PEGI system. This proposal is primarily aimed at tackling the problem of UK consumers' lack of awareness and poor understanding of the PEGI ratings. Dr Byron believes that unifying the ratings systems for video games and films will help UK consumers to pay the same level of attention to BBFC ratings on games as they currently do on films. More generally, the report recommends "sustained, high profile and targeted efforts" to increase parents' understanding and use of age ratings for video games.
Many would welcome these changes, particularly in light of the increasingly film-like realism in video games and the consequential blurring of the boundaries between the two forms. However, it remains inherently hard to determine if the classification system has much, or any, effect at user level. It may not do much to stop younger children buying 18 certificate games, and it may do even less to stop younger children using those games bought by a parent or by someone who is old enough.
Many of the report's proposals are clearly aimed at changing the consumer attitude to ratings on video games. However, many observers argue that consumers, and particularly parents, give more weight to film ratings simply because they view video games as harmless fun rather than due to any flaw in the current ratings system. This inherent problem could frustrate any legislative attempts to shield children from violent games.
Of course, debate on the proposed changes is entirely academic unless the Government actually acts on the various proposals. Shortly after the report was published Education Minister Ed Balls said that the Government was "fully committed to implementing the report's recommendations"; it remains to be seen whether or not this commitment will lead to legislative measures.
The report acknowledges that there is a generational divide between parents and children which means that many parents do not feel empowered to manage risks in the modern technological world. The report addresses this issue directly, aiming to allow parents to learn as much as possible about games before having to make a purchasing decision. As for any concerned parents, when making these decisions they should use whatever rating system applies in conjunction with their own tastes and standards and their individual knowledge about what's best for their kids.
Pinsent Masons is highest ranking professional services firm in FT Diversity Leaders 2020 report