Australia is one of the few countries where video games are still regularly refused classification (“RC”), even after the R18+ rating was finally introduced in 2013, which allowed for more mature content in video games than the previous highest MA 15+ rating. Additionally, several video game and movie rating decisions are appealed each year to obtain a lower age-rating to be able to reach a broader audience. Recently the Australian Classification Board (“ACB”) overturned the previous RC decision of the dystopian video game We Happy Few. This is the first time that an RC decision based on drug use related to incentives and rewards was overturned. Media that are classified RC cannot be sold, hired, advertised or legally imported in Australia. Consequently, digital distribution platforms (e.g. Steam) often remove the relevant games from their digital shelves as well. This article describes the procedure to challenge Australian rating decisions through the example of We Happy Few.

Disclaimer: Baker McKenzie advised Gearbox Publishing on appealing the RC decision of We Happy Few.

I. Applicable laws

Applicable laws are:

(a) the Classification (Publications, Films and Computer Games) Act 1995 (“the Act”);

(b) the National Classification Code (“the Code”);

(a) for video games: the Guidelines for the Classification of Computer Games 2012 (“the Guidelines”);

(b) for films: the Guidelines for the Classification of Films 2012; and

(c) for publications: Guidelines for the Classification of Publications 2005 (“Publications Guidelines”).

Specific sections that must be taken into account:

2.1 Section 11 of the Act provides that each of the following matters must be taken into account in classifying computer games:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults;

(b) the literary, artistic or educational merit (if any) of the publication, film or computer game;

(c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and

(d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.

2.2 These four matters are recited in the Guidelines under the “Introduction of the Guidelines” section, again emphasizing their importance. However, according to case law, these matters are no classification criteria or standards that are mandatory, nor do they govern classification decisions. However they must be taken into account by the ACB.

2.3 Additionally, the Code provides that classification decisions are to give effect, as far as possible, to the following principles:

(a) adults should be able to read, hear, see and play what they want;

(b) minors should be protected from material likely to harm or disturb them;

(c) everyone should be protected from exposure to unsolicited material that they find offensive; and

(d) the need to take account of community concerns about:

  • depictions that condone or incite violence, particularly sexual violence; and
  • the portrayal of persons in a demeaning manner.

2.4 Again, these four principles are recited in the Guidelines under the “Introduction of the Guidelines” section, again emphasizing their importance.

2.5 Furthermore, the Guidelines provide that the following three essential principles underlie the use of the Guidelines:

(a) the importance of context;

(b) assessing impact; and

(c) the six classifiable elements.

2.6 In terms of the importance of context, the Guidelines explicitly state:

Context is crucial in determining whether a classifiable element is justified by the story-line or themes. In particular, the way in which important social issues are dealt with may require a mature or adult perspective. This means that material that falls into a particular classification category in one context may fall outside it in another.

II. Procedure

Classification decisions by the Classification Board are reviewed by the Classification Review Board (“CRB”), an independent statutory body and part time board who only meet as needed. The members of the CRB live in different parts of Australia and travel to Sydney to make review decisions. A decision made by the CRB is an entirely new classification decision. It replaces the original classification decision made by the Classification Board. Unlike other countries (e.g. Germany), decisions by the CRB cannot be appealed again (unless challenged in court).

Applications to have a classification decision reviewed must be lodged within one month after the initial decision of the Classification Board. The applicant needs to provide the correctly completed and signed application form[1] and the correct fee, or a written application for fee waiver.[2] With a fee of AUD 10,000 (USD 7,412 / EUR 6,333), the costs to have a classification decision reviewed are high compared to other jurisdictions.

Together with the application, additional material needs to be provided, in particular the arguments the applicant would like to bring forward (ideal length is 8 to 20 pages, depending on the exact circumstances). Furthermore, demonstration videos or excerpts of crucial parts of the game/film/publication can be provided. In case of a video game, the board will most likely want to review/play the game prior to the hearing. Thus, the applicant also needs to provide means for the board, enabling it to play the relevant game (e.g. Steam keys). The game will be demonstrated to the board by a game tester prior to the hearing.

After the appeal is lodged it typically takes 2-3 weeks until the Classification Review Board gathers. The applicant (or legal advisor) can and should participate in the review process where the submitted materials can be presented together with arguments related to them. The applicant must expect that the CRB will ask questions on the game/film/publication and that it will challenge the arguments brought forward. The hearing typically takes 2-3 hours.

III. Arguments on the merits

Arguments to be brought forward naturally depend on the exact case and the game/film/publication. Here is a short rundown of some of the arguments that were raised in relation to We Happy Few.

1. The standards of morality, decency and propriety and the importance of context

The “standards of morality” (see above) allow releasing a game which shows drug use where it overall condemns such practices by a deep and mindful story. This is the case with We Happy Few. The game has been praised by critics for its sophisticated story and its dystopian setting which is inspired by many well-known literary works. Drugs are constantly depicted as negative by the game through its setting, its story, its characters and even the gameplay elements which involve taking so called "Joy" pills. These arguments were outlined and explained in great detail and supported by descriptions of relevant parts of the game and quotations from independent game critics. Overall, the Joy mechanic inside the game is a nuanced and critical take on prescription drug culture and tackles an issue that is extraordinarily relevant to modern life and a growing issue in the western world. The game is far from a positive depiction of these issues. This interpretation is also in line with the Guidelines’ explicit statement on context according to which “Context is crucial in determining whether a classifiable element is justified by the story-line or themes. In particular, the way in which important social issues are dealt with may require a mature or adult perspective. This means that material that falls into a particular classification category in one context may fall outside it in another.

2. The literary, artistic and educational merit of the game and its general character

2.1 The literary, artistic and educational merit of the game and its general character allow for a release in Australia. We Happy Few is indeed a critically acclaimed game which is named in line with several well-known and respected literary dystopian works, in particular Aldous Huxley’s Brave New World, Stanley Kubrick’s A Clockwork Orange, George Orwell’s 1984, Terry Gilliam’s Brazil and Ray Bradbury’s Fahrenheit 451. The game draws from such works, applies their ideas, develops them further and brings them to a contemporary form of art, becoming an independent literary and artistic work of its own. This argument was again supported by quotations from various independent sources.

2.2 It is commonly agreed in all democratic countries and educated societies that works like the aforementioned ones play an important role in the public and social discourse and the process of opinion forming. Moreover, the “educational merits” of these works remind societies of the dangers of oppressive regimes and dictatorships and thereby serves to cause us to reflect on basic freedom rights which are the foundation of every democracy. Consequently, many of the aforementioned works are also read and discussed in schools. Thus, people from as young as perhaps 15 - 16 years old learn to understand these novels and will therefore also understand the nature of the story of We Happy Few.

2.3 While there is no doubt that it is not in Australia’s interest to have media released which encourage the taking of drugs, it must be in its interest to have media released which follow the exact opposite purpose. A good example in this regard is the abovementioned Brave New World which is one of the most critically acclaimed novels of all time and also heavily relies on extensive and positive descriptions on the abuse of a drug called Soma. However, like We Happy Few, Brave New World overall condemns and questions drug use by describing a society which forgot how to think free and which distracts itself with trivial routines and customs. Ultimately the main character commits suicide because he prefers death over living in a dead society.

2.4 It was noted that the Publication Guidelines also state that “Drug use should not be promoted or encouraged.” Nevertheless, if looked at independently and without considering the overall story of the novel, several passages from Brave New World could be seen as promoting or encouraging drug use. For instance:

(a) “All the advantages of Christianity and alcohol; none of their defects.” (referring to Soma)

(b) “...there is always soma, delicious soma, half a gramme for a half-holiday, a gramme for a week-end, two grammes for a trip to the gorgeous East, three for a dark eternity on the moon...

(c) “Soma was served with the coffee. Lenina took two half-gramme tablets and Henry three.

(d) Several additional quotations were brought forward.

2.5 Despite these and numerous similar passages, Brave New World is available in Australia and nobody would seriously consider censoring or banning the novel for reasons of promoting or encouraging drug use. It is not in Australia’s interest to deprive its people from important “literary, artistic and educational” works which encourage critical thinking and which actually try to prevent people from abusing drugs.

2.6 According to Sec. 11 (d) of the Act, the persons or class of persons to or amongst whom it is published or is intended or likely to be published need to be taken into account. We Happy Few targets a certain crowd of non-mainstream gamers who specifically look for an experience other than the typical major selling games. The game targets people who want to be challenged in spirit, are interested in philosophical discourse and who question their daily environment. These characteristics typically apply to older and more educated customers. This makes it unlikely that younger players will be interested in the game. This argument was again supported by quotations of independent game critics. The fact that minors are most likely not interested in the game must (additionally) be taken into account in light of the Code’s principle that “adults should be able to read, hear, see and play what they want” and that “minors should be protected from material likely to harm or disturb them”. Since the game is not appealing to minors, the latter principle weighs less while the first principle gains more importance.

3. The unrealistic setting and style of the game

3.1 The Guidelines provide that the impact of any game must be assessed. Traditionally, realistic elements are considered to have greater impact than unrealistic elements. Many international age-rating institutions, including the CRB follow and apply this principle. Several examples from previous CRB decisions were broad forward to support this argument.

3.2 The principle of unrealistic elements having less impact is not only supported by various scientific research on the impact of media but is also rooted in the Australian classification legislation, including the requirements on drug use. This becomes clear through the specific inclusion of classification criteria such as: “Interactive illicit or proscribed drug use that is detailed and realistic is not permitted”. Such criteria show that the Australian legislator, like many others, considers realistic elements to be of greater impact than non-realistic elements.

3.3 Typical elements which are considered as unrealistic are sci-fi (e.g. Star Wars), post-apocalyptic (e.g. Mad Max) and fantasy scenarios (e.g. Lord of the Rings). Typical unrealistic stylistic elements are a cartoonish, abstract, stylised or out-dated graphical presentation. Unrealistic elements like aforementioned ones prevent the player from identifying with the content and overall do not pose an example for real-world behaviour.

3.4 We Happy Few features both, an unrealistic sci-fi scenario (set in an alternative history) as well as a cartoonish, abstract and stylised graphical presentation.

4. The Purposive Approach to the Code and the Guidelines

4.1 Aside from the above mentioned merits which must be taken into account when assessing the game, it was argued that a the release of We Happy Few is not prohibited by the Code and the Guidelines, as this would be inconsistent with both for the following reasons:

(a) The purpose of both, the Code and the Guidelines, is to prevent the release of games which present drugs in a positive light and therefore encourage drug misuse;

(b) It is a common principle under Australian common law that all acts and their respective wording need to be interpreted in light of the purpose of the relevant act. This argument was supported by a large number of case law.

(c) The wording drug use related to incentive and rewards can be construed in different ways. It can either be applied by picking out and assessing single gameplay elements which concern drug use related to incentive and rewards (as it was done in the initial RC decision) or by considering whether the overall game depicts drug use related to incentive and rewards. In line with the purposive approach as set out by Australian case law the wording must therefore be interpreted in light of its purpose which means that games which overall and clearly condemn the use of drugs should not be refused classification. Even more so, the purpose of the Code and the Guidelines requires such games to be classified.