There is no specific offence in the UK for the digital supply of a video game (whether via download or stream) to children who are younger than the stated age limit of the game under Pan European Game Information (PEGI) ratings.
The UK’s Video Recordings Act 1984, requires all boxed games to have received a PEGI rating from the Games Rating Authority before release. It is a legal requirement that PEGI-rated games must only be supplied in physical form to those who are above the specified age limit – underage supply is a criminal offence. However, this legal requirement does not apply to online games which would, of course, include those offered on platforms such as Steam, PlayStation Store and Google Play Store.
Nonetheless, the marketing of a digital video game (via download or stream) to children younger than its stated age limit under PEGI could breach the UK’s rules on marketing communications/advertisements as well as the requirements of the PEGI Online Safety Code.
UK rules on marketing communications/advertisements
The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications in the UK. It includes general rules which require advertising to be responsible and not offensive as well as specific rules that cover advertising to children. The CAP Code is enforced by the UK’s Advertising Standards Authority (ASA) which can take steps to remove or have amended content that breaches the rules, in addition to a range of more onerous sanctions for non-compliance which are explained on its website.
The ASA has remit to adjudicate on what is featured on platforms which support online games such as Steam. Although the most recent rulings against such platforms have related to breaches of rules in the CAP Code that deal with misleading advertising claims around pricing/ discounts, there have been several ASA rulings against video game developers and publishers who advertise/ market online their PEGI 18-rated games to children.
There was, for example, a ruling against Zenimax in respect of an advertisement for the PEGI 18-rated video game The Evil Within which reflected the theme of the game, survival horror. There was a complaint made to the ASA that the advertisement caused distress/offence and could be seen by children.
The ASA ruled that Zenimax had breached the following rules of the CAP Code:
Rule 1.3 “Marketing communications must be prepared with a sense of responsibility to consumers and to society.”
As there was a possibility that children could be served the advertisement, the ASA concluded that the advertisement had not been responsibly targeted. Although the ASA noted that the advertisement was targeted to males aged 18 to 35 who were signed into their respective YouTube accounts, the advertisement could still be served to users who had previously searched for horror movies and/or video games, even when not signed in.
Rules 4.1 and 4.2 In summary these provide that marketing communications should not cause harm and offence.
The ASA recognised that the advertisement contained content which reflected the game’s theme, which is PEGI-rated 18. However, the ASA considered that the images were excessively gory and were likely to cause distress and offence to some who saw the advertisement.
Compliance – option 1
The first approach to meet the requirements of the CAP Code is to filter video games featured on video game online platforms so that no child is marketed a video game with a PEGI rating for older children or adults. From our experience PEGI-18 rated games are the highest risk.
The ASA emphasised in its ruling against Zenimax that the advertisement was available to all users of YouTube. If the advertisement had been restricted to those who had signed into their accounts then it could have been targeted at a gaming audience aged 18+ and, in that situation, we think theASA would likely not have upheld the complaint. In that connection, in a separate ruling on an advertisement for Wolfenstein: The New Order the ASA did not uphold a complaint on the grounds that “the readership was predominantly a gaming audience aged 18 or over, who were likely to be familiar with the nature and contents of different types of video games…The ad shown on the homepage included the name of the game, a PEGI 18 symbol and pictured two figures holding guns.”.
Compliance – option 2
The alternative approach is to market all video games featured on video game online platforms (including those which are PEGI 18-rated) in a manner that will not cause harm to children.
This approach was considered by the ASA in its ruling over an advert for Call of Duty: Advanced Warfare. An in-game advertisement for this PEGI 18-rated video game appeared on the Planet of Cubes app which is popular with children. That advertisement included various scenes of violence, including explosions, soldiers firing guns and one scene in which a man was dragged through the air with a grappling hook and punched. The complainant asserted that the advertisement was irresponsible and harmful, because it appeared on an app that might be played by children. However the ASA ruled that there had not been a breach of the CAP Code on the basis that:
“although the ASA acknowledged that the nature of the product and the theme of the ad might not appeal to all who saw it, we considered that the scenes of violence were mild, and did not consider the advertisement likely to cause harm to children. We did not consider the advertisement unsuitable to be seen by children, and therefore concluded that the advertisement did not breach the Code.”
PEGI Online Safety Code
The PEGI Online Safety Code (POSC) applies to all online gaming providers who decide to become signatories. The PEGI Advisory Board has been established to interpret the provisions of the PEGI Code of Conduct and to suggest appropriate implementation tools.
Failure to comply with the POSC and/or decisions of the PEGI Complaints Board can expose offenders to sanctions including but not limited to the following measures:
- mandatory modification of any associated advertisements both on and off-line;
- removal of the PEGI Online label from any online service associated with breach of the POSC; and/or
- a fine of between €1000 and €250,000 per violation depending on the gravity thereof and the failure to take appropriate remedial action.
Even if certain providers of online video game platforms are not signatories themselves, the publishers of video games featured on those platforms who are signatories will no doubt want to work with them to achieve compliance given the sanctions available for breach.
If there is no PEGI rating for a video game sold online (which includes making it available for download or streaming), it is best practice to obtain a voluntary rating for it. This ensures that consumers are correctly informed of the game’s contents and are aware of its target audience. These ASA rulings suggest that the inclusion of PEGI ratings could show that platforms feature video games in a responsible manner which, in itself, helps to demonstrate compliance with theCAP Code.
A final point to consider is that the sale of expansion packs and other updates as in-game purchases which target children, could breach the Consumer Protection (from Unfair Trading) Regulations 2008. The UK’s Competition and Markets Authority has investigated online and app-based games to check whether they are misleading, commercially aggressive or otherwise unfair. This would be another benefit of age filtering video games on video game online platforms. As marketing for in-game purchases tends to be more aggressive when targeted at older children or adults, the filtering would help ensure children do not receive potentially infringing communications.