On 8 June 2020, the Government published its response (the “Response”) to the Digital, Culture, Media and Sport Select Committee’s (the “Committee”) Report on Immersive and Addictive Technologies (the “Report”). The Response sets out the steps that the Government is taking to address the concerns and recommendations that were raised in the Report.
- Loot Boxes
Perhaps the most significant recommendation of the Report was to conclude that the sale and purchase of loot boxes should be considered gambling and therefore regulated under the Gambling Act 2005 (the “Act”). The Report suggested that loot boxes should be regulated by UK gambling laws because they fit the description of “playing a game of chance for a prize” as per section 6(1) of the Act where “prize” means “money or money’s worth” (although this is contrary to the Gambling Commission’s view that loot boxes do not fall within the ambit of the Act).
The Government has previously confirmed that it is reviewing the Act with a particular focus on tackling issues around online loot boxes. In the Response, the Government has reiterated this and has called for written evidence and roundtable discussions on loot boxes to examine, “the size and variation of the market, the design of mechanisms, the context in terms of other types of in-game spending, the impact on consumers and particularly young people including links to problem gambling, and the effectiveness of the current statutory and voluntary regulation”. The results from the call for evidence will be considered alongside the review of the Act.
- Online Age Ratings
The Committee noted that the physical distribution of games is regulated under the Video Recordings Act 1984 (the “VRA”) and its subsequent amendments. However, the Report states that the VRA has not kept pace with the changing technology of video games and thus, games that are published and played online are not subject to a legally enforceable age-rating system. As a result, the Report recommends that the VRA should be amended to ensure that online games are covered by the same enforceable age restrictions as games sold on disk.
The Government has stated that a majority of video games platforms already use the best practices laid in Pan European Game Information (“PEGI”) age ratings and are committed to the International Age Ratings Coalition (“IARC”). However, the Government will be making further assessment of voluntary compliance and if progress is not forthcoming, amending or creating legislation will be considered.
- Video Games Research
In the Report, the Committee highlighted that there is a spectrum of behaviour in relation to gaming ranging from positive to harmful, which can vary significantly between individuals and over the course of their lives. The Report noted that the World Health Organisation formally included ‘gaming disorder’ in its International Classification of Diseases. Nevertheless, the Report states that research on gaming disorder is scarce and there is a need for more high-quality longitudinal and epidemiological studies to understand it. Consequently, the Report recommended that the Government should immediately update its areas of research interest to include gaming disorder, requiring games companies to contribute financially to independent research.
In the Response, the Government acknowledged that more is needed to improve the quality and quantity of research on gaming. The Response states that the Department for Digital, Culture, Media and Sport’s (“DCMS”) Chief Scientific Adviser will discuss the Committee’s recommendations with UK Research and Innovation (“UKRI”) and will lead a series of workshops this year with experts from relevant academia and industry. The aim of the workshops will be to determine the range and detail of the questions that need to be addressed on the impacts of video games. Additionally, the Response confirms that video games will be included in the DCMS’ Area of Research Interest document in the next update of the document, which is due to take place this year.
- Future Online Harms Regulator
The Committee stated that one key area producing online harm is excessive screen-time. The Report states that companies are extremely reluctant to acknowledge their role in designing “addictive” properties in games. This issue has also been considered by the Information Commissioner’s Office (“ICO”) in its development of the Age Appropriate Design Code of Practice (the “Code”), which was laid before Parliament on 11 June 2020. Though the Committee welcomed the Code, the Report states that as game addiction is not restricted to children, greater clarity is required on how excessive screen-time and gaming addiction should be monitored and dealt with.
In its Response, the Government points to the Online Harms White Paper (published by the Government in April 2019) (the “White Paper”), in which the Government stated its intention to create a new regulatory framework which will apply to companies that provide services that allow, enable or facilitate users to share or discover user-generated content, or interact with others online. Following an initial consultation on the White Paper, the Government states that it will appoint Ofcom as the new online harms regulator.
In relation to the recommendation made by the Committee, the Government states that further evidence and research is required in the area of gaming addiction and it will continue to work with Ofcom to support research in this area to inform future action. If necessary, Ofcom may set clear expectations for companies to prevent harm to their users, including harm resulting from excessive screen-time and gaming addiction.
With a rising number of young people aspiring to establish a career in professional esports, the Report states that the industry must acknowledge their duty of care to these aspiring players. Furthermore, the Committee states that there is a need for increasing professionalism and regulation in esports to prevent exploitation in a young and growing industry. As such, the Report recommended that the Government lay out, within the next 6 months of the Report, how a similar framework to the duty of care practices enshrined and enforced by the governing bodies of other sports can best be applied within esports.
To this, the Government responded by confirming that it will bring forward plans for ministerial roundtables with esports stakeholders to discuss opportunities and barriers in the esports market and how industry can work collectively to encourage best practice in areas such as esports integrity and player well-being.
The Report highlights that there is growing concern about the application of VR and AR technologies to create ‘deepfake’ films of people supposedly making statements they never actually gave. Consequently, the Committee recommended that social media platforms should have clear policies on the removal of deepfakes and the Government should include deepfakes as part of the duty of care on social media companies planned in the White Paper.
The Government has pointed out that in the White Paper, it has proposed that “companies, where appropriate, take prompt, transparent, and effective action to address online harms, including the propagation of false and misleading content.” Furthermore, the Government has confirmed that it will keep a close eye on how technology which can be used to manipulate audio and video content develops.
The Committee commented that based on the evidence, some in the gaming industry take their responsibilities regarding tackling gender imbalance in the workforce seriously, whilst others could be doing more. On this, the Government has agreed that more work needs to be done to improve representation of women and girls, both in the industry and within content itself. In the Response, the Government has stated that it is committed to “strongly encouraging the consideration of diversity within video games research programmes including the development of the framework supporting future independent video games research.”
In the Response and following the White Paper, the Government has confirmed its intention to ensure that companies who facilitate user contact and the sharing of user-generated content have appropriate systems and processes in place to deal with harmful content and activity on their services. An initial consultation response to the White Paper was published in February of this year and a full response with further policy details is expected later this year.
Article co-authored by Fatima Butt