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Films and Publications Board Attention: Project Leader

Your reference

Our reference

Date

NH

12 April 2012

SUBMISSION ON GUIDELINES TO BE USED IN THE CLASSIFICATION OF FILMS, INTERACTIVE COMPUTER GAMES AND CERTAIN PUBLICATIONS (GOVERNMENT GAZETTE NOTICE 112 OF 2012)

Introduction 1. Michalsons Attorneys is law firm based in Cape Town that specialises in Information Communication and Technology law. Several of our clients are interactive computer game developers based in South Africa. We have been approached by our clients to make written submissions on the proposed guidelines as they relate to classification of interactive computer games (games).

2. On behalf of our clients we welcome the opportunity to make comment on the guidelines. The game development industry has a specific interest in the classification of games since it will affect; How they should design games in order to reach their desired target market, and How they may legitimately express themselves and ideas in their chosen medium.

We recognise the importance of the correct classification of games and the very useful purpose it serves to inform consumers about the content of the game and the appropriateness of the games for younger audiences. We welcome the fact that the Films and Publications Board has looked at foreign jurisdictions when drafting the guidelines and specifically those relating the rating of games.

3. We would be willing to give oral submissions to the board if they feel that such submissions will help clarify some of the issues raised or recommendations made.

Michalsons Attorneys Leading legal Insight Partners: Lance Michalson BA LLB | John Giles BA LLB Associates: Andrew Weeks BA LLM | Esti Louw BA LLM Consultant: Graham Giles BA LLB

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Summary of comments and recommendations

4. We support the guidelines in the broadest terms and agree with the intent behind it. As per the explanatory attached with the draft guidelines as an industry we support the notion that minors should be shielded from inappropriate content and recognise that the guidelines is one way of achieving this goal.

5. As an industry we believe that parents and guardians must play a more prominent role in determining what is suitable for their children to see and as such strongly support the notion of educating parents about the rating system and what it means. However we believe that putting onerous offences on developers and distributors is unfair, will damage our fledgling industry and ultimately will be ineffective given the nature of modern distribution.

6. Notwithstanding the above we have several concerns relating to; The definition of certain terms, and Over broadness or lack of clarity of some guidelines.

Inclusion of Blasphemy 7. While we are glad that Blasphemy is (as it is defined in s2 and read with s20(a)) not be treated as a classifiable element, we question the relevance of the term at all given; Its apparent low usage by the board, how few people actually know what it means.

Generally we feel it reflects an oversensitivity to the issue, and feel that the categories of Prejudice and Strong Language sufficiently covers inappropriate religious insensitivity. 8. We would suggest the Blasphemy be removed from the guidelines.

Definition of Competitive Intensity 9. S20(l) of the guidelines reads: The level of competitive intensity in a game to the extent that it is linked to violence must be treated as a classifiable element to determine age restrictions when appropriate Concerns have been raised about the vagueness of the section, and its relevance in general. Does the violence referred to in definition refer to in-game violence or does it refer to violence expressed by players in the real world? We feel this is important as many games developed these days are intended to be played by multiple players in a competitive environment.

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10. For example would a Pokemon game be considered as having a high level of competitive intensity if it resulted in the players of the game having a physical fight due to the results of the virtual game? Would this then lead to the game being classified as 16 or 18, even though it is almost universally recognised as non-age restricted game (The ESRB rates it as E and PEGI as 3+)?

11. Using the Pokemon game as a basis again, would the in game violence of the Pokemon games (using two creatures to battle each other) result in the games being classified as

12. Secondly how is the criteria going to be quantified? By this we mean how does the board intend to measure the impact of a games level of competitive intensity, since it is the impact that seems to be the defining criteria of how this category will affect a games ratings?

13. We question if this category is even measurable, as surely a the degree to which a player gets personally involved and the level of excitement created by rivalry to obtain rewards can only be measured if a game is released into the market and have actual players play the game? But since the game cannot be released to the market before being rated it would be impossible for the board to objectively determine this criteria.
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14. We would ask that Competitive Intensity be removed from the guidelines as it is too vague and we feel cannot be adequately measured. Failing which we would ask that the definition of Competitive Intensity be clarified in relation to whether it talks about in game violence or real world violence as a result of the game, suggesting that the section read; 15. The level of competitive intensity in a game to the extent that it is linked to in-game violence must be treated as a classifiable element to determine age restrictions when appropriate

General use of classification categories and other semantic errors 16. We note that their appears to be a mismatched use terminology in s22(2) in relation to the various classification categories. 17. S22(2)(iii) uses the language the games is restricted to persons over the age of 13 while s22(2)(iv) and (v) use the language the material is suited for persons (our emphasis). This use of language is odd, seems one would assume that the higher rated categories would use the language of restricted while the lower rated categories would use the less strict terms. Given also

The Pokemon series of games has been hugely successful the world over, and almost universally targeted at minors. For more information of the Pokemon series of games see http://www.pokemon.com 2 From the definition of competitive intensity as defined in s2 section of the guidelines.

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that the guidelines and ranking are meant to inform consumers of what is suitable it would make sense to replace restricted to with suited for.

18. Further s22(2)(ix) seems contradictory, children may not access the material but then in the very same sentence states that parents and care-givers are in the best position to decide. This is followed through in s27 which makes it an offence to allow a child under the age of 10 to view the material, but yet parents are given the option to decide. These clauses are contradictory and make no sense. If parents or care-givers are in the best position to decide if the game is suitable for their children then may not access is the wrong language, and should be replaced with is not suitable for. S27 should be edited to read more like s28 or s29, and reference to an offence should be removed.

19. S22(2)(ix) seems to be borrowed from film classifications since it refers to films, DVD/Blu Ray We contend that this should be changed to be technology neutral so that it applies it can apply to all formats of games.

20. Given all the above we would recommend that: S22(2) is redrafted so that all language referring to restricted is removed and is instead replaced with suited for. S22(2)(ix) and s27 are redrafted to resemble s28 or s29 so that it is not contradictory S22(2)(ix) is redrafted to make it technology neutral so that it makes sense in the context of classifying games and will apply to all formats of games. We would propose that it reads means that the games is not suitable for children under the age of 10, although parents and care-givers are in the best position to decide whether or not a child in their care may play the game;

Conclusion 21. Once again we thank you for the opportunity to participate in this process. The game development community is very interested in having these sort of discussions and hopes to be more involved going into the future.