Looking back at the primitive, black-and-white graphics, it is difficult to see what all the fuss was about. But it began a debate. As processor power increased, visuals became more life-like and, as gamers grew up demanding games that explored more adult-oriented themes, the issue has periodically resurfaced throughout the past 30 years.
For those who missed the most recent round of controversy and finger-pointing: in June, the Dean and Canons of Manchester Cathedral threatened Sony with legal action for using a depiction of the cathedral as a location for a gun battle in PlayStation 3 science fiction first-person shooter Resistance: Fall of Man.
So began the media outcry, fuelled by the announcement two weeks later that the British Board of Film Classification (BBFC) had rejected Rockstar Games’ Manhunt 2 for PlayStation 2, PSP and Wii, meaning it could not be legally supplied in the
In September, the press picked up on comments from ITV executive chairman Michael Grade suggesting that video games exist in a “moral vacuum” compared to TV drama. Grade was responding to a presentation by John Riccitiello, chief executive officer of Electronic Arts, arguing that video games were unfairly demonised in the media for violent content.
This controversy raises interesting legal points, but dissecting the merits of a potential claim against Sony would take us into technical aspects of copyright, passing off and ecclesiastical law outside the scope of this article (which may be moot in any event, following Sony’s public apology). The main concern of the representatives of Manchester Cathedral appeared to be the insensitivity shown to the church’s work in combating gun crime in the city, but this highlights wider implications for developers seeking to incorporate privately owned property into games, especially in cases where the representation is built virtually without recourse to filming in or access to the real-life location.
Manhunt 2 is a stealth-based game in which the protagonist can sneak up on enemies, ‘executing’ them by a number of graphic methods. Following rejection by the BBFC, it became the first game to be banned in the
Manhunt 2 was initially passed with an Adults Only (AO) rating in the
Under the UK’s Video Recordings Act (VRA) 1984 (as amended), video games are exempt from classification by the BBFC unless they include mutilations or gross acts of violence or torture towards humans or animals, human sexual activity or sexual organs, depictions of criminal behaviour or anything likely to encourage any of these activities (whether during the interactive elements of the game or in cut scenes).
If a game is rejected by the BBFC, its distribution is prohibited. Compliance with the VRA is the responsibility of the developer or distributor and failure to do so is a criminal offence. Most distributors and developers also voluntarily self-certify games using the Pan-European Game Information (PEGI) age ratings and logos, highlighting any content involving such elements as bad language, use of drugs or depictions of violence.
The BBFC’s decision appeared to turn on the repetitive nature of the gameplay rather than the visuals. The New York Times ran an article concluding that the AO version of Manhunt 2 was no more graphic than the recent Hostel or Saw series of films; the BBFC’s own research published earlier this year suggested that violence in games is less influential and upsetting to the player than violence in television and films is to the viewer.
By stating that issuing a certificate to Manhunt 2 would “involve a range of unjustifiable harm risks to adults and minors… and accordingly that its availability, even if statutorily confined to adults, would be unacceptable to the public” some commentators have also suggested that the BBFC appears to have tacitly acknowledged that, despite the certification process, adult games often find their way into the hands of children.
In the
Rockstar (the developer of the Grand Theft Auto series) has filed an appeal with the Video Appeals Committee to contest the BBFC’s ruling against Manhunt 2 — the Carmageddon ban was successfully appealed and the game eventually released uncut with an 18 certificate — and submitted a reworked version in the US, which was passed with a Mature rating (equivalent to an 18 certificate in the UK) and is due for release in October.
In another example of technology outpacing the law, there is a loophole in the VRA for games downloaded over the internet. Relevant sections of the VRA appear to apply only to games supplied on disc (or another physical device).
In the short term, this loophole is unlikely to have an impact on the games console market, given the self-certification schemes most distributors and developers sign up to and the policies of major console manufacturers. But it is feasibly something that developers of controversial games for the PC market will seek to exploit, particularly as increasing numbers of PC games are made available for download online. Although most game developers and publishers (and their lawyers) understand what is necessary to ensure compliance in these areas, increasingly game content is not being produced by the companies but gamers themselves.
Just as Web 2.0 has fostered communities producing their own music and video (on MySpace and YouTube for example), the interconnectivity of the new generation of consoles has enabled gamers to collaborate and create their own code.
In the world of PC gaming this is nothing new; modifications (or ‘mods’) created by fans, using a game’s base code, are prevalent — the classic example being Counter-Strike, a mod of Half-Life, one of the most widely played first-person shooters in the world.
Now, console manufacturers are opening up proprietary interfaces, making available to home programmers the same tools used by commercial developers. Publishers are also increasingly incorporating opportunities for users to generate new content in-game. Recent releases such as Tiger Woods PGA Tour 08 and Halo 3 for Xbox 360 enable players to create new online challenges for other users or manipulate environments mid-game (even to the extent of subverting the game physics to create situations outside the contemplation of the developers).
Upcoming titles such as LittleBigPlanet for PlayStation 3 and Will Wright’s PC game Spore have player customisation at the heart of their gameplay, with user-generated content being uploaded to game servers and shared with all networked players when created.
The risk for any publisher allowing such content to be made available is that gamers could upload material that is inappropriate for the age of the intended audience or is defamatory, obscene or (perhaps most significantly) infringes the copyright of third parties.
Developers and publishers need to ensure they are suitably advised on aspects of content ownership, privacy and data protection, and have procedures in place for monitoring or moderating illegal or discriminatory content.
Andy Moseby and Paul O’Hare are partners at Kemp Little.