Online and downloadable games classification in Australia

The Australian newspaper recently ran a story entitled “Apps and games to face censor, says ALP” which leads in with “THE Labor Party has flagged it will shut down a major loophole in the mobile phone industry.

I’ve very interested in this topic, and have spend the last few days forming (and refining) my opinion. I’ll run through my thought processes over the course of this post, but for now I’ll start with a couple of excerpts from the story.

On classification requirements before computer games can be sold in Australia:

It is a legal requirement that films, computer games and some publications be classified before sale, but a loophole, or lack of awareness, means apps are being sold for use on smartphones such as the Apple iPhone without any censorship or guidance for users and parents.

In regards the standard practice of releasing mobile phone games without submitting them for classification:

While a number of submissions to the ongoing inquiry into computer games classifications raised the potential issue of classification for mobile games and apps, Australia’s smartphone providers and games developers have blithely broken the law and dodged hundreds of thousands of dollars in fees.

After some discussion on twitter, I started a thread on the PIGMI mailing list (unfortunately, it looks like replies aren’t appearing on the online archive). I’ve also conducted some more online research, and I would like to share the results here.

I initially felt it was fairly clear that smartphone games need to be submitted for classification, and that Apple (and other smartphone app providers) was in breach of legislation by selling games that have not been classified. However, I now feel that Apple probably has a defensible case given:

1. Lack of clarity between “computer games” versus “mobile phone games”
2. Years of government inaction in asserting classification requirements
3. Free games may be exempt because they are not for sale in Australia
4. Classification may a developer, rather than publisher, requirement

There are good counter-arguments to each of the above points: The term “computer games” covers console and handheld games, so it should cover the iPod Touch and iPad at the very least; Inaction doesn’t imply tacit approval; Distribution and sale may be treated similarly in Australia; and no matter who is responsible for classification, retailers cannot sell unclassified material (regardless of indemnity clauses in developer agreements).

Another area of contention is jurisdiction. The Office of Film and Literature Classification (OFLC) and the Australian Broadcasting Association (ABA) were wrapped up a few years ago, and media regulation is now left to the Classification Board (part of the Attorney-General’s office) and the Australia Communications and Media Authority (ACMA).

The Classification Board is generally responsible for classification of media that will be sold in Australia (traditionally in brick-and-mortar stores): films, books, and video games. Works must be submitted to the Classification Board for review before they can be sold in Australia, and those items refused classification cannot be sold. The process is lengthy (20 days for each decision), costly (hundreds of dollars for each submission), and ill-suited to media with substantial dynamic content (which is impossible to exhaustively test).

The ACMA tends to be responsible for regulation of content that will be transmitted: music, online content, television and radio content. Presumably, part of the reason for this is because classification of high-volume and live content is infeasible. Moreover, industry codes of practice have shown to provide and adequate level of consumer protection. They allow content producers to quickly distribute content (with minimal overhead), and consumers are able to complain of any breaches to the codes of practice.

Given the high-volume and dynamic nature (patches, updates, and online play) of online and downloadable games, it’s probably more appropriate for the ACMA (rather than the Classification Board) to be responsible for regulating them. The ACMA registers industry codes of practice for commercial television and radio broadcasters, and the Internet Industry Association. However, I was unable to find any evidence that there is a similar code of practice from the games industry.

It’s important that these issues are resolved as Apple arguably has a commercial advantage over other publishers who do (possibly unnecessarily) submit their games for classification (eg. Nintendo DSiWare and Sony Playstation Network).  I believe that the best outcome for all parties (the Classification Board, the games industry, consumers, and the general public) is for industry self-regulation via a code of practice.

What should be in the code of practice, and who it should apply to, are topics for further discussion and future blog posts.