international minor first-amendment entertainment-law
Does a free video game distributed on the internet require age verification or restrictions?
<p>If a free, completely non-commercial video game distributed online contains mature content or themes (such as cartoon violence and cartoon nudity, but not pornography), is it legally necessary to include some kind of age verification or mature content warnings when distributing it through the game's own website and/or the Steam platform?</p>
<p>Being a free game it has no specific target demographic, but since realistically likely at least half of the players will be either from the US or the EU, those legislations are of particular interest.</p>

<p>In the United States, I don't know how you could be required to include an age-verification mechanism, as you're generally free to market and sell your game to minors.</p>
<p>In <a href="https://supreme.justia.com/cases/federal/us/564/786/#tab-opinion-1963566" rel="nofollow noreferrer"><em>Brown v. Entertainment Merchants Assn.</em>, 564 U.S. 786 (2011)</a>, video-game creators sued to prevent enforcement of a <a href="https://law.justia.com/codes/california/2009/civ/1746-1746.5.html" rel="nofollow noreferrer">California law</a> that prohibited the sale of violent video games to minors and required that the games be labeled with an adults-only designation. The district court granted the injunction, and the Supreme Court affirmed. Because video games are protected by the First Amendment, and because banning sales to minors is not a narrowly tailored way to achieve any compelling governmental interest, the law was merely &quot;the latest episode in a long series of failed attempts to censor violent entertainment for minors.&quot;</p>
<p>The restrictions you seem to be imagining roughly mirror those imposed in California, so I suspect that any attempt to impose them by another government (in the United States) could not survive a First Amendment challenge.</p>
<p>Note that the answer in the E.U. could be quite different, as the American approach to free speech is rather unique.</p>

<h1>Steam's side of the problem</h1>
<h2>Consumer Side</h2>
<p>From Steam's point of view, every user of Steam <strong>has</strong> to be at least 13, because <strong>they positively</strong> affirmed to be so when they applied dor a steam account and confirmed <a href="https://store.steampowered.com/subscriber_agreement/" rel="nofollow noreferrer">Steam's TOS</a>. It's a sentence that can't be bypassed even with parental consent, as it is a hard requirement for the contract to be valid:</p>
<blockquote>
<p>You may not become a subscriber if you are under the age of 13. Steam is not intended for children under 13 and Valve will not knowingly collect personal information from children under the age of 13.</p>
</blockquote>
<p>That language is as clear as &quot;No admittance below 18&quot; at a night club door, &quot;No alcohol below 21&quot; in some bars, or &quot;no rentals below 25&quot; at a car rental. They don't want to and will not contract with anyone that is below this age. As a direct result, any and all games on steam can be assumed to be rated the equivalent of PG13 (USK 12 in Germany, A in Japan, etc.) or below without the need for extra marking: people below 13 are not allowed to use steam, not even with parent permission.</p>
<p>Now, games for <em>older</em> people are behind an age verification barrier. To access them you have to <em>positively confirm</em> that you are above 18 by entering your age. By this measure, Steam tries to set up an extra gate. For example, <a href="https://store.steampowered.com/agecheck/app/578650/" rel="nofollow noreferrer">&quot;The Outer Worlds&quot;</a> (the game is rated USK 16) does prompt:</p>
<blockquote>
<p>THIS GAME MAY CONTAIN CONTENT NOT APPROPRIATE FOR ALL AGES,
OR MAY NOT BE APPROPRIATE FOR VIEWING AT WORK.</p>
<p>The developers describe the content like this:</p>
<p>“This Game may contain content not appropriate for all ages, or may not be appropriate for viewing at work. This may include: Blood and Gore Intense Violence Strong Language”</p>
</blockquote>
<p>By setting your date of birth and deciding to view this page, you both <strong>confirm that you are of the required age</strong> (for your jurisdiction) and that you are <strong>agreeing to view this content</strong>. It's like a door in a shop that reads &quot;Beyond this point is the adult stuff. By going up there, you agree that you want to see this, and to get in you need to tell us when you are born.&quot;</p>
<p>However, it is more than just a simple age check: Using for example a 2008 date (=12) results in &quot;Sorry, but you're not permitted to view these materials at this time&quot; and trying again either by going back or reloading the page does repeat the error: it does remember you (for some time). So it is a <em>somewhat</em> effective age barrier - as the error page does prompt &quot;retry&quot; and then allows you to take the test again. But the casual kid is deterred. If you used 2003 instead (=17), the game appears from Germany, as you are older than the USK 16 demands.</p>
<p>So, from Steam's PoV they did their diligent duty to prevent people from accessing material that they might not want to be subjected to and which they are not allowed to buy in some jurisdictions. Why?</p>
<h2>Why does Steam need Age verification at all?</h2>
<p>Well, <strong>Steam is multinational</strong>, so First Amendment is much less of a concern for them in this regard as they can't use that defense anywhere but in the US. As they are a retailer, they can contract with whoever they want, as long as they follow the law wherever the contract is made - both for selling the game and agreeing to sell it.</p>
<p>As a retailer of games that sells games <em>internationally</em>, they have to comply with the law in <em>all</em> jurisdictions where a game is sold. So while the First Amendment allows the game maker to not mark the game in the US, Steam on the other hand will need to comply with local laws <em>in other countries</em>.</p>
<h3>Germany</h3>
<p>For example, the German Jugendschutzgesez (Law for the protection of the Youth) prohibits making a game accessible to someone that is below the <a href="https://en.wikipedia.org/wiki/Unterhaltungssoftware_Selbstkontrolle" rel="nofollow noreferrer">USK</a>-rated age. So a USK 18-rated game accessible can't be legally bought or downloaded by someone below 18. Also, you can't advertise for a game that does not have any USK-rating at all, so it's pretty much impossible to sell and distribute a game that does not have a USK sticker in Germany, making USK-rating factually mandatory. For example, <a href="https://usk.de/en/usktitle/43770/" rel="nofollow noreferrer">Wolfenstein II</a> and <a href="https://usk.de/usktitle/22837/" rel="nofollow noreferrer">Fallout 3</a> are USK 18 and the game pages do carry the red USK sticker on Steam - and in the case of Fallout 3, there are multiple versions - all of them rated separately by the USK to need the 18 stickers, though only the very first one has been cut in violent content.</p>
<h3>Japan</h3>
<p>Another example is the <em>Japanese</em> Fallout 3 version which <a href="https://www.gamespot.com/articles/fallout-3-de-nuked-in-japan/1100-6200975/" rel="nofollow noreferrer">does not contain one quest and its accompanying NPC</a> as well as some animations because the first two would hurt the sensibility of the only country that was ever nuked in an act of war, all might fall under the <em>obscenity laws</em> (<a href="http://www.japaneselawtranslation.go.jp/law/detail/?ft=1&amp;re=02&amp;dn=1&amp;x=0&amp;y=0&amp;co=01&amp;ia=03&amp;ja=04&amp;ky=article%20175&amp;page=20&amp;lvm=02&amp;id=1960" rel="nofollow noreferrer">Article 175 of the Criminal Code (1907) of Japan</a>) and as a result, CERO could block the release in the country otherwise. <a href="https://en.wikipedia.org/wiki/Computer_Entertainment_Rating_Organization" rel="nofollow noreferrer">CERO</a> still rated the game <strong>Z</strong>, the equivalent of USK18 in Germany. As a result, it's illegal to sell the game to someone below 18 in Japan - and to buy it if you are under 18.</p>
<blockquote>
<p>（わいせつ物頒布等）(Distribution of Obscene Objects)</p>
<p>第百七十五条　わいせつな文書、図画その他の物を頒布し、販売し、又は公然と陳列した者は、二年以下の懲役又は二百五十万円以下の罰金若しくは科料に処する。販売の目的でこれらの物を所持した者も、同様とする。</p>
<p>Article 175　A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale.</p>
</blockquote>
<p>Note that the Japanese law does not define what obscene is, but it follows the &quot;We know it if we see it&quot; rule.</p>
<h2>Publisher side: How can Steam require being informed about content and age ratings?</h2>
<p>Well, it's easy: To put a game onto Steam, <a href="https://partner.steamgames.com/steamdirect" rel="nofollow noreferrer">you sign a contract with Valve.</a> Even the informational page about the contract contains this clause:</p>
<blockquote>
<p><strong>What you shouldn’t publish on Steam:</strong></p>
<ol>
<li>Adult content that isn’t appropriately labeled and age-gated</li>
</ol>
</blockquote>
<p>After applying, you'll get a contract that contains clauses that include your obligations that fit this, and they include - as far as I was told - that you have to tell them about the ratings you got in various jurisdictions (among them: Germany) and to inform them about any and all mature content in such a way that you need to label your game properly and activate age-gating.</p>
<p>You can't use the First Amendment outside of the United States, as it is not applicable Law outside of the US. You can't use the First Amendment against a contract, because you <strong>agreed</strong> to do something. And finally, you can't use the First Amendment against a private entity unless it performs a governmental function, and Steam doesn't do that.</p>
<p>If you don't want to do your part under the Steam publishing contract as a game developer, you shall not sign the contract, and as a result, you will not be able to publish your game on Steam.</p>
