Earlier this month, the US Supreme Court handed down its decision in Brown v EMA, AKA the Californian ‘violent’ games law case, AKA Arnie vs all gamers, everywhere. The law, if upheld, would have given lawmakers the ability to ban certain games and place stringent requirements on others. However, the US Supreme Court struck down the law on the basis that games are protected by the free speech provisions of the US Constitution and that the Californian law was unconstitutional. So far, so good.
It’s fair to say the case provoked a fair bit of excitement in the US, with everyone from the BBC to Fox News commenting on it. There was much talk in the US about the constitutional importance of video games being protected by the First Amendment (the bit of the US Constitution which sets out the right to free speech) as well as the commercial significance (the games industry would be heavily affected if the violent games law had been permitted). If you want to read more about the specifics of the case, I recommend you read Tommy Rousse’s piece on it at Killscreen.
What I want to talk about today though is the European perspective on this case, which I can sum up as follows: polite bemusement. Or, put it another way, we were asking ourselves: why are our US friends so worked up over this? I imagine most Europeans (including me) were pretty bemused by the whole case, from its inception thanks to Californian State Senator Leland Yee to the increasingly shouty comments made by the US games industry bodies about it and on through to the recent court cases themselves.
Now I’m not saying that Europeans were bemused by US opposition to unsubstantiated claims like “violent games = violent children = bad”. We understand that well enough, since we have our own problems on this side of the Atlantic with people making wrongheaded claims like that. So, for the purposes of this post, I’m going to ignore the fact that this particular law was based on inadequate research and had a political anti-games agenda. I’m going to focus on the European perspective regarding two more general factors which were important in the case:
(1) US opposition to there being any government involvement in games regulation (by which I mean setting the age ratings for games) at all; and
(2) The US love of constitutional law arguments when it comes to regulation.
US opposition to government involvement in games regulation
Most European countries have quite happily accepted a government-established and enforced legal regime for games regulation. In the UK, for example, we have the Video Recordings Act 1984 – which is currently administered by the British Board of Film Classification but is in the process of being moved to another body called the Video Standards Council, which will essentially apply the European PEGI system of game ratings (more on PEGI in a second). The UK games industry works quite happily within the government regulation model: it gives the games industry certainty they are operating within the law and it gives the government comfort that they can say to the public that games are being properly regulated and therefore that children are being protected. In fact, the UK debate has historically been defined far more by the perceived need to protect children than it was by any arguments about the rights of developers and the public to free speech and self-determination when it comes to games.
So, on to PEGI. Not only are Europeans relaxed about their governments being responsible for games regulation, they’ve set up a (mostly) European wide standard of European games regulation – called PEGI. In the UK, this is developing into a sort of hybrid part-government and part-industry regulation model, where the industry has a significant say in what the regulation should be and then the government steps in to make sure it comes up to the proper standard and is properly enforced. Again, to emphasise the point, as far as I’m aware there has never been any issue raised about government involvement/interference.
By comparison therefore, I think arguments in the US about this Californian games law being a bad idea because it represents government interfering in the games industry seemed a bit odd to Europeans. From their perspective, what’s the harm in the government setting the legal standard so we know where everyone stands (especially if the industry gets to have its say in the matter too, as with PEGI)?
Obviously that’s the point at which one can get an argument into which is better – the US/self-regulated model or the European/government-regulated-but-with-some-self-regulation model. But I don’t want to get into that – I just wanted to illustrate the point that Europeans were bemused by Brown v EMA because government-led games regulation is just fine in Europe, on the whole.
US love of constitutional law arguments
Several Twitter friends and I reached the (admittedly unscientific) conclusion over the course of the case that the vocal free speech angle to the Brown v EMA case says a lot about how US society sees the interaction between constitutional and ‘practical’ laws in a different way than Europeans.
I’m not saying it’s necessarily a good or bad thing, it just seems to be a fact that debates in the US often involve references to constitutional law in a way that they don’t elsewhere. Again, to use my own country as an example, I cannot recall any real instances of the many UK debates about ‘violent’ games involving any discussion of free speech or human or constitutional rights (though it’s worth bearing in mind the UK doesn’t have a written constitution anyway!) Obviously free speech considerations are involved when one proposes government regulation of anything – that’s how a democracy works. But the point is that the relatively emotive language of free speech just hasn’t ever expressly entered the debate in the UK. Unscientific evidence from various European friends suggests similar approaches in their countries (with the possible exception of Germany, which I think is perhaps closer to the US constitutional law tradition than the UK in this regard – though, German readers, please correct me if I’m wrong!).
I’ll stop at this stage, to avoid degenerating into generalities of the “all Americans are X and Europeans are Y” kind (with the notable exception of my deliberately silly post title – sorry about that). In reality, I’m sure that there were some Americans who were as bemused as the Europeans by the whole affair, and vice versa. But I thought it was worth writing this post to highlight the point that, on the whole, Europeans have looked at this case with rather different eyes to their American counterparts.
This matters because…
(1) The days of purely national games regulation are fast coming to an end; and
(2) The US is a huge games market, so US games regulation matters to everyone – whether they agree with it or not.
The second point is pretty obvious so I won’t go into it further. But the first point is pretty interesting, I think. Country-specific games regulation made sense in the days of relatively simple boxed products on console or PC with no digital distribution, DLC, virtual goods or other ‘long tail’ type products/services. Now we have MMOs, social and casual games, new business models like freemium supported by virtual goods, new platforms and new devices – none of which fit comfortably (or at all) within the existing games regulation frameworks.
National games regulation models (both industry and government led) are having difficulty keeping up to speed with changes in the industry – and I don’t think they can succeed, ultimately. In fact, it’s tempting to predict the ultimate demise of games regulation altogether, but I don’t think that’s likely – ultimately there is always likely to be a strong public policy desire to ensure content (games especially) is handled appropriately, especially where children are involved.
So what will replace the current hotch-potch of different games regulation regimes? Answers on a postcard, please…It could be an enlarged version of ESRB self-regulation, or a PEGI type system, or some kind of supra-national government body, or something else altogether. But sooner or later, something will have to change – in fact, I suspect that eventually the games industry will demand it in order to avoid being choked up in red tape/controversy.
At that stage, Americans and Europeans will have to start talking to each other about games regulation a deal more than they are now. In practice of course they will be able eventually to agree common ground for how to rate games etc – but I hope misunderstandings about free speech, constitutional rights and the proper role of governments don’t get in the way first.