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Censorship of Video Games

Written by: Piya Bose
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Over the last few years, governments around the world have been firing shots across the bow of the Interactive Video Game Industry, seeking to constrain increasingly graphic and violent content found in current interactive games. As morality groups chant battle cries of ' protect the children' as their permanent justification for censorship of controversial and violent videos or erotic expression, the stage is set for a battle royal between governments and gamers in the digital age.

Children like violent and high stress games. a study by Dr. Jeanne Funk, published in the Journal of India Pediatrics, found that among 7th and 8th grade student games involving violence, 29% preferred sports games (which also have some violent content). only 2% preferred educational games. For the past several years, video game manufacturers have chosen to amplify graphic and sadistic violence, while extraordinary technological advances have made the carnage ever more realistic. Some games also feature full motion video footage of real actors as opposed to artificial characters. BMX XXX, for instance, a game, released in Fall 2002, features footage of real women performing in a New York strip club.

In Grand Theft Auto: Vice City, a player can have sex with a prostitute and then get his money back by beating her to death with his fists or with a baseball bat, action that can be left n through the PlayStation controller, or she can be shot, complete with spurting blood and painful sound effects.

In Postal, the user gets to "go postal" and receive points for killing as many innocent victims as possible while they beg for money. Postal 2, scheduled for release in Spring 2003, is "so violent, so racist and homophobic, that four countries are already considering banning it because players can gruesomely kill African-Americans and gays." Evidence seems to suggest that some children immersed in extremely violent content and high stress games for a very long time can be harassed by such experience. such videos may lower the empathy level of children. Extremely violent games are unrealistic, as they do not show the actual human pain and suffering. Moreover, they significantly increase the adrenaline levels in the players who play them, thereby leading to hyper aggressiveness and attention deficit disorder. The censorship efforts of the video game industry started after a spate of school shootouts by children, allegedly influenced by violent video games.

In the United States the censorship efforts started a few years ago with the imposition of a voluntary rating system that required all video games to include a rating level. the industry agreed to a system created by the Entertainment Software Rating Board (E.S.R.B) with ratings ranging from E (Everyone) to M (Mature, above 17) and A.O (Adults Only). However these voluntary ratings are quite ineffective, as it does not alert the consumer as to what category of the game's content triggered adult rating.

Various states in the Untied States have come up with restrictive legislation from time to time, but have been heavily opposed by the entertainment industry, as going against the first amendment. In many cases they have been struck down.

An ordinance in the city of Indianapolis, promulgated an ordinance that forbade any operator of five or more video games machines in one place to allow an unaccompanied minor to use an 'amusement machine' that is 'harmful to minors'. if games contain 'graphic videos' or 'strong sexual content' then operators of video arcades were required to put up warning signs and separate the games by partition and conceal the machines from open view.

However, before the ordinance even went into effect, video game manufacturers, their trade associations and various free speech organizations launched a challenge on grounds of First Amendment. Court ruled that the graphic content was not obscene. Court compared actions of the city in prohibiting access to violent video games to forbidding children from reading "The Divine Comedy" and "Dracula". Hence, the video game was protected by first amendment. One of the violent video games that the city believed would violate the ordinance was 'The House of the Dead'. The court reviewed in depth, the various aspects of this game including the seemingly 'unending succession of hideous axe wielding zombies'. Court held that concepts of self defense, protection of others and fear of the 'undead' are age old themes in literature and hence protected by First amendment. The court also noted that the characters in modern video games are cartoon characters. There is nothing morbid about a child's interest in playing 'The House of the Dead' or 'Ultimate mortal Kombat 3' and no child should be dragged off to a psychiatrist because he enjoys playing those games.

This court decision of vital importance to the Software industry, since it is one of the very first cases to interpret the protection to be afforded to this new breed of video games.

In June 2003, the Interactive Digital Software Association (IDSA) hailed a unanimous decision by the U.S. Court of Appeals for the 8th Circuit Court finding that video games are a constitutionally protected form of expression and that government cannot enact laws regulating sale of violent video games to minors.
This decision is a total and unambiguous assertion of the fact that video games have the same constitutional status as a painting, film, and book. this decision sends a powerful signal to government at all levels to regulate consumer's access to the creative and expressive content in video games will not be tolerated.

In its ruling the court made some extremely important findings. it said that games, regardless of their content are constitutionally protected speech. 'If the first amendment is versatile enough to shield the painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carol, we see no reason why the pictures, graphic designs, concept art, sounds, music, stories and narratives present in video games are not entitled to free protection. A federal appeals court has upheld the dismissal of a $33milion lawsuit that claimed that the makers of a video game, a pornographic website and a movie studio were to blame for a 1997 shooting spree at Health High School, in which three students died. Carneal, the assassin, said he was influenced by "Basket ball Diaries", a movie that includes a dream sequence in which the main character shoots several students and a teacher worth a shotgun. The court in this unanimous ruling dismissed the case saying that companies could not have known that someone would commit such a crime after playing the game. The content of the video game is therefore protected by First Amendment.

A class action suit seeks $5 billion form 25 entertainment companies, filed on behalf of a family of a slain teacher and other victims of the Columbia shootout case. Two boys fatally shot a schoolteacher and 12 students and wounded 23 others. Before killing themselves in the attack at Columbia High School. when authorities investigated, they discovered that the boys had played thousands of hours of a "first person shooter"; video game that had been modified to occur in a layout identical so that their high school with yearbook photographs of their schoolmates electronically pasted onto the game's imaginary victims. U.S.Federal Trade Commission study ordered by President Clinton in the wake of Columbine released a report stating that movie studios, record companies and video game producers have aggressively marketed violent entertainment products to children, even as they label the material inappropriate for young audiences.

The room lights are low. The TV screen is flickering with images of a shootout between cops and bad guys. Wide eyed in front of the TV screen sits a 9 year old, clutching a remote control to a video game, which needs active participation. Rewards are to be given for good shots and a voice in the background encourages killing more police officers. On July 15, 2004, the US District Court in Seattle granted summary judgment to overturn Washington state bill 1009, that would have banned minors from purchasing video games that depicted violence against law enforcement officers (claiming that the playing the games causes increased aggression and violence in children and young adults). the court found that the legislature's belief that video game cause violence, particularly law enforcement officers is not based on reasonable influences drawn from substantial evidence. A computer video game called "Manhunt" encourages players to kill everyone in sight is banned from distribution in New Zealand. this game is the first video game banned by the office of Film and Literature. it is a game where the only thing you do is kill everyone in sight. Moreover, you can choose to kill 'mild', 'medium' or 'hot'. Hot includes shards of glass, to garroting wire, plastic bags and machetes. With the plastic bag for example, you see the victim's mouth gasping for breath.

In Canada, video games enjoy complete freedom from government regulation. The Canadian Interactive Digital Software Association (CIDSA), comprising major Canadian video game manufacturers, has adopted the U.S industry's voluntary classification system. Association member companies are encouraged, but not mandated, to submit their wares to the U.S board for rating before sending them to Canadian stores. Harvey Nightingale, CIDSA Executive Director, says the purpose of the board is "not to censor, but to provide consumer information." while the industry maintains that the classification system is intended to keep adult-rated games out of the hands of children and youth, they vigorously oppose any attempt to legislate the system by mounting legal challenges and lobbying politicians.

Now, let us briefly examine the state of affairs at the United Kingdom. there are 120 British companies involved in designing and manufacturing software and distributing these playthings, represented by a trade association, ELSPA (European Leisure Software Publishers Association). they participate in a system of voluntary self-regulation operated by the Video Standards Council, which has hired a senior Scotland Yard officer to police the age ratings (12, 15 and 18) it agrees with manufacturers. Video games played in arcades are not 'exhibitions of moving pictures' for the purpose of The Cinematograph Act 1909, so they do not require licensing by local authorities. video and computer games are exempt from classification under Section 2 of the Video Recordings Act, unless ' to any significant extent' they 'depict' human sexual activity, or acts of gross violence towards human and animals, or are likely to encourage such behavior. a vogue in the nineties for games which involve elimination - usually the obliteration - of animated or digitized cartoon figures, raised the difficult legal question of whether such humanoid characters (robots, dragons, zombies or dinosaurs) counted as 'human' or 'animal', or indeed whether enjoyment derived from blasting them to smithereens was likely to encourage violent behavior in real life.

The better view is that games which involve battles between non-realistic cartoon characters do not require classification unless players are supposed to take pleasure in acts of torture and mutilation. Similarly, if the game called for player involvement in the sexual activity of animated characters, it might 'simulate or encourage sexual activity' and so require classification.

The benchmark for video games was set by the Video Appeals Committee (VAC) in 1997 in the CARMAGEDDON case. this computer product of British creative technology and black humor sold in hundreds and thousands in 57 countries, but was banned in U.K by the British Board of Film Classification (BBFC) after the press accused it of encouraging road rage. the game playable only on PCs costing upwards of 1,200 pounds offered harmless dodgem car style fun to experienced players in the driving seat who ran over mad digitized cows and a poisonous tube of blobs (sprites) which squealed when hit and splattered green 'blood' on the windshield. England refused to countenance a game which gives the player permission to carry out atrocious acts of carnage in this safely contained world of the PC screen... well heeled, laddish young men will take pleasure in the game's savage delinquency... as it will inspire players to commit acts of gross violence against defenseless targets like children, old people, etc.... the lethal weapon is one that many of us wield every day, the motor car and the death toll caused is a very major problem in every advanced nation.

The VAC by a majority classified CARMAGEDDON as '18'. Its reasoning was:

The BBFC bore the burden of proving harm to potential viewers and had adduced no real evidence to this effect. There had been over 300,000 sales already in other countries, without reports of 'copycat' effects. There was an important distinction between a video or film, and a game. The latter was much less likely to have an imitative effect. VAC members when playing the game did not experience a 'delinquent' feeling when hitting a cow or a pedestrian 'sprite'. The game was fast and furious and players had to concentrate on scoring points rather than engaging in violence

the VAC verdict was notable for standing against the political hysteria and approving technologically clever, tongue in cheek entertainment. now let us examine the scenario with reference to India. it needs to be mentioned that there is no specific statute in India relating to the regulation of video games either in matters of obscenity or violence. there has been no court case which has required special focus on the video game industry. the law is to be gathered from the following:
Article 19 (2), Constitution of India: It restricts the freedom of speech granted under Article 19 (1)a, in the interest of decency and morality.

Article 39 (e) and (f), Constitution of India: It's a directive policy providing that the state shall ensure that the tender age of children shall not be abused. Children to be given facilities to develop in a healthy manner and in conditions of freedom and dignity. Childhood and youth to be protected against exploitation and against moral and material abandonment.

Section 5(B)(I), The Cinematograph Act, 1952: Lays down rules for guiding the Board of Film censors; wherein it has been empowered to reject request for granting certificate to any film, if it is found against interest of decency and morality.

Section 292, IPC: SALE, etc. of OBSCENE BOOKS, etc.

A book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if it its effect, or (where it consists of two or more distinct items), the effect of any one of its items taken as a whole, such as to tend to deprave and corrupt person who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. this section does not extend to any work, the publication of which can be proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, etc or objects of general concern or which is kept or used bonafide for religious purpose.

However, despite all the above mentioned laws, India needs specific legislation relating to the video game industry, as has been attempted by other countries. The Miller's test is used as yardstick to see if a certain work is obscene or not. it is a three pronged test, which looks at the following: The prurient interest and contemporary community standards. Patently offensive works. Serious literary, artistic, political or scientific value [S.L.A.P.S]

Obscenity consists of the exhibition or representation of the 'sexual' or 'excretory' functions of human physiology

in such manner to undermine the stability of the community. The offensive nature of such a material 'depraves and corrupts' its viewers and readers to such an extent that their criminal tendencies are aroused. The impression it leaves on the min of a person is instrumental enough in shaking his emotional make up. At this stage, its impact on the 'psyche' becomes so pervasive that libidinous thoughts are arouse even in the mind of an ordinary decent minded person leading to an expression of 'overt misbehavior'. This may take forms like rape, adultery, unnatural offence, rioting, murder, etc. However, the 'obscene' is not punished simply because some other offences under the penal law have ensued from it. it is punished because by its very nature it prepares a ground for the mens rea requisite in other offences.

The media industry is geared to make pleasure come, easy and eternal. Naturally. Our own private Xanadus. Yet, the pleasure to be gained from media culture is either undermining or false, that they trivialize, distort; they seduce us from the real world. But, in a world increasingly based on ideology of the individual's right to consume, there are plenty of voices to defend and legitimize any pleasure and the media's rights to give people what they want.

The linking of violent activities by children to video games has hitherto been viewed as a very far-fetched connection by the courts of law. But the coincidences are too many and the reports of psychiatrists around the world linking violence to video games is hard to ignore. Governments and the video game industry should come together to make the digital world a safer heaven to dwell in.

The author can be reached at: piyabose@legalserviceindia.com / Print This Article

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