Games and the Law

[Thursday Next]

Gay marriage is not illegal. It's not prohibited by law, it's just not recognised.

 

By your logic "inciting imminent lawless action" is just as meaningless as other forms of hate speech. Since just because the imminent action is lawless doesn't make it wrong.

 

As Dean says the difference is deeply cultural. I don't think I am oppressed just because a government funded organisation (very) rarely says "this film is too obscene, you can't sell it here." The important stuff, the freedom to protest and all that jazz is well recognised and I would argue that the UK is in practical terms far less oppressed than America, especially given the conduct of the US police during the occupy protests and the apparent complete lack of investigation or reprimand for those involved. In my opinion Americans as a nation take some freedoms too seriously, the freedom to not wear a helmet while riding a motorcycle for example is a stupid, pointless freedom that confers no benefit and carries a huge risk. Yes being truly free does mean having the freedom to act like an imbecile, but that doesn't mean that it's right, any more than something being illegal means it is wrong.

[TheMightyEthan]

Ah, I guess I misunderstood the marriage thing in the UK.  I've never felt I have a firm grasp of the UK government's relationship to the church in that area.
 

By your logic "inciting imminent lawless action" is just as meaningless as other forms of hate speech. Since just because the imminent action is lawless doesn't make it wrong.

The distinction I would draw is that in the one instance you are saying to a specific person or group "commit this specific crime right now" knowing they are likely to follow your command, versus just generally advocating that it is a good thing to do these sorts of actions. Also, as far as I know that's only used in instances of violent crimes, not crimes generally, though I could be wrong about that.
 

As Dean says the difference is deeply cultural. I don't think I am oppressed just because a government funded organisation (very) rarely says "this film is too obscene, you can't sell it here." The important stuff, the freedom to protest and all that jazz is well recognised and I would argue that the UK is in practical terms far less oppressed than America, especially given the conduct of the US police during the occupy protests and the apparent complete lack of investigation or reprimand for those involved. In my opinion Americans as a nation take some freedoms too seriously, the freedom to not wear a helmet while riding a motorcycle for example is a stupid, pointless freedom that confers no benefit and carries a huge risk. Yes being truly free does mean having the freedom to act like an imbecile, but that doesn't mean that it's right, any more than something being illegal means it is wrong.

I understand it's deeply cultural, my initial comment was more to express my ongoing wonder at what seems to me like a very fundamental difference between cultures that generally seem very similar (at least in broad terms), and one that (from my cultural view) seems very important to a free society.
 
The motorcycle thing is just ridiculous, yes, but that's an incredibly small minority.  I'm sure there are crazy people who think they have insane, stupid rights in the UK too.  I'm sure the vast majority of Americans would agree that that's ridiculous, and definitely not the same thing as view-point based restrictions on what you can and cannot address in media.

[Saturnine Tenshi]

I can understand why these things are laws in the scope of different societal values.

 

Doesn't mean I agree with the values or the laws.

Edited June 26, 2013 by Saturnine Tenshi

[TheMightyEthan]

Something I want to point out is that I don't think America is some perfect, shining beacon of a free society, and agree with you about the responses to the Occupy protests.  I just think in this specific area America's approach is better.

[Thursday Next]

Appreciate that, and I'm not taking any of it personally. No country is perfect. I happen to like our way. I'm more than happy for us to have differing opinions on the subject.

[Saturnine Tenshi]

 

 

I'd be much more in line with your kind of thinking if these were prohibited due to portraying [something that matters to me] or something

 

That's what I'm reading, Dean. I'm not sure if it's a cultural thing or what, though.

 

I guess I'm closest to Thursday's: "Yeah, it's something I have a little trouble with. Even extreme examples like 'Human Centipede 2'. I think the film is appalling and should never have been made, but I also don't believe in restricting people's right to make and watch crap. I mean, if I was in charge, Jersey Shore and all it's ilk would be banned as obscene."

[TheMightyEthan]

If I were in charge the entire doctrine of obscenity (as it exists in US law) wouldn't even exist as far as media targeted at adults goes.

[Thursday Next]

I'd essentially be a dictator, but my ideas are great so everyone would be fine with it. Although, the first 6-12 months would be messy while undesirables were rounded up and... dealt with.

[deanb]

@Tenshi: Yeah there is an element of it too that I guess. No doubt had it being banned due to portraying gay relationships as Ethan gave as possible example it'd be a much more serious issue, but then the rating isn't big issue there but the ban on gay relationships. Whereas so far no one seems to have had an issue with sex abuse, peadophillia, torture, bestiality, necrophilia, etc being illegal. 

 

I do respect your lots opinions on how you think it should be done, just don't agree with them obviously. Different values through growing up in different countries with different laws and culture.

[Saturnine Tenshi]

I never said I haven't had an issue with some of those things being illegal (in media). Just not the topic of conversation I suppose. Most would leave a sour taste in my mouth. The bracketed bit in my quote wasn't meant chidingly, btw. I just think it's a damn needless dance where media is concerned.

 

Once again, I'm leaning toward Thursday's take.

[Mr. GOH!]

Banning media for depictions of drug use is utter bullshit. There's a valid conversation to be had about drug laws, especially concerning their efficacy and necessity. Adopting a 'Drugs Are Bad, M'Kay' attitude doesn't do anyone any good. Supressing depictions of drug use in the media shuts down this conversation and normalizes the "Snort coke once and YOUR HEART EXPLODES!!!" nonsense. 

 

The rule of thumb re: American Free Speech is that the content speech itself does not harm anyone in any real way; however, if the speech is intended to lead to harming unwilling parties, then it can be regulated. Speech that incites violence ostensibly harms the targets of the violence without their consent. Fraud harms the recipient of the speech without his or her consent. Depictions of illegal acts harm no unwilling people. 

 

There is a debate in the legal and civil liberties communities about the few exceptions to this rule of thumb. Depictions of pedophilia that do not involve actual minors fall into this gray zone. Very little else does.

 

The government may also regulate speech based not on its content, but upon its mode. So the police can arrest you for walking into a courtroom and yelling about how drug laws are bullshit if you're disrupting court proceedings. The government can keep demonstrations penned into certain areas so traffic isn't disrupted. 

 

The other big exception is broadcast (over-the-air) media, which can be regulated by the government because broadcast frequencies are quasi-property of the federal government and broadcasters are just licensed to use them and must abide by certain restrictions and mandatory content rules (educational and news programming must be broadcast for a certain number of hours each day, for example). I am firmly against any sort of broadcast content restrictions, and I am fairly certain they'll be struck down by the Supreme Court eventually. 

 

I am also against censoring the content of stuff targeted at children. Then again, I am a dangerous free speech radical out to subvert society.

Edited June 28, 2013 by Mr. GOH!

[Thursday Next]

Banning media for depictions of drug use is utter bullshit. There's a valid conversation to be had about drug laws, especially concerning their efficacy and necessity. Adopting a 'Drugs Are Bad, M'Kay' attitude doesn't do anyone any good. Supressing depictions of drug use in the media shuts down this conversation and normalizes the "Snort coke once and YOUR HEART EXPLODES!!!" nonsense. 

 

It's not about depicting drug use. It's specifically banning promoting drug use by giving it a positive effect with no detriment. For example, Snake is allowed to smoke in MGS, this can carry a positive effect making lasers visible, but it causes his health to drop. In the US, tobacco advertising is strictly regulated to the point of being almost impossible.

[TheMightyEthan]

The rule of thumb re: American Free Speech is that the content speech itself does not harm anyone in any real way; however, if the speech is intended to lead to harming unwilling parties, then it can be regulated. Speech that incites violence ostensibly harms the targets of the violence without their consent. Fraud harms the recipient of the speech without his or her consent. Depictions of illegal acts harm no unwilling people.

This is the best and most succinct explanation of American free speech rules that I've ever seen.

[Mr. GOH!]

Why are drugs singled out? Do films depicting sex (simulated) have to promote STD awareness? Do films depicting cars require seatbelt warnings or statements about how pollution is changing the climate in dangerous ways? Do media depicting eating Big Macs have to be realistic as to their health effects? 

 

Edit: Business speech, including advertisements, is among the exceptions to unregulated free speech. Advertisements are direct promotion of a thing rather than a mere depiction. Since it is in the advertisers' interest to, essentially, deceive the consumer, or at least not to mention any harms, the regulation is needed as consumer protection counterbalance. 

 

I also fully support regulating media in which manufacturers or sellers of harmful products pay for product placement or advocacy, though such regulation should be disclosure of such arrangements rather than banning such speech. 

 

Ethan; Thanks. I did my 'thesis' on free speech and worked at a nonprofit dealing with First Amendment issues after 2L, specifically advocating for the regulation of broadcast advertisements of junk food aimed at kids while simultaneously protecting non-advertisers' rights to broadcast swearing, sex, and violence. I am a bona fide free speech nerd. Doesn't help much in my current practice, but it's fun to whip out when talking about games.

Edited June 28, 2013 by Mr. GOH!

[TheMightyEthan]

Freedom of expression is the nearest and dearest to me of the rights in the Bill of Rights, but you take it slightly farther than even I would.  Makes me feel like I'm not radical enough.  

[WTF]

Since the Human Centipede 2 was brought in and I know people who banned 'that filth' in this country aaand I know a bunch of people who worked on that film I suppose I can talk about it to some extent.

Censorship is not an easy thing and the BBFC is actually a very liberal organisation that doesn't just ban each and every thing. We've long moved past days when we found the word Ninja offensive due to our cultural history and thus the Ninja turtles were the Hero turtles here.

However censorship here in the media works like this - if there is content depicted that they believe can negatively affect a large number of people it will be banned. It's not to do specifically with violence, drug use, horror, stereotypes and such. The depiction of someone being anally raped by a dick covered in wire gauze was too much for the censorship board. That's one of the things why they banned it. There was also something about sandpapering a penis. There is a reason why snuff and torture porn isn't depicted in mainstream media and it's illegal - there is actual physical harm and illegal activities involved. When they released or were on the verge of releasing the Human Centipede 2 - they were interested in pushing the bar just to get a shock reaction. They wanted to disturb people and the purpose of it was to disturb people and make them as uncomfortable as possible. I'm not sure of how much content was cut in the versions released, however there's a lot of things in the film that they did not want to expose the general public to. HC2 wanted an 18 rating and the BBFC at best would give them an R18 because of the content. This isn't to do with freedom of speech as much as the unwillingness to be a ratings body that would expose the public to some of the film's content. Had it been released, the reaction would be to pretty much shit on the BBFC - trust me a lot of the content in that film was downright horrid. I do recall someone working on the film and someone who saw the film telling me that it was pretty vile. Also based on what happened it's unlikely tom six will be allowed to film here in the UK before his content is extensively reviewed because of reports by some of the actors (would've been fine otherwise). This isn't like the Middle East where you aren't allowed to negatively depict some of the states and if you do face a lifeban.

 

When it comes to media there is such a thing as expression and public expression. Freedom of speech when it comes to media content needs to work with both of them. However that said, the UK has done some fairly silly things of late when it comes to hate speech, particularly in terms of punishment.

The biggest issue with gaming is that software and entertainment are married in a really shitty relationship. Hence ratings are always going to be an issue in many countries. Plus as discussed, we live in a global world - what is kosher in your culture may not be kosher in mine and honestly people of that nation are fine with that. For instance Gravure, while being weird, is perfectly acceptable in Japan because of the way their culture works. I doubt people give a shit. Bring that here to the West and because of the way our cultures have evolved we'd be pretty much going 'ban this filth'.

 

Let's take for instance the UK, does anyone remember the very furry orangina advert that was aired a few years ago with all sorts of sexual references. The Ad council obviously didn't have a problem with it. People complained to OFCOM and it was banned from being aired. Freedom of Speech for all rights and purposes is a very flexible thing. Some people want a lot and some people want nothing - the thing we should accept is to give a society the choice to choose how much freedom of speech and expression they choose to have. Otherwise what's the point of giving such powers to organisations like OFCOM and FCC?

 

The problem with these silly ratings in Australia is that people do not have a choice. People don't like the ratings and there are several organisations that consider these ratings silly. However there are those in power who are pushing their agendas in order to push their views forward. Should we not allow these idiots to not have their freedom of speech or expression? Of course not. But that said we should prevent them from encroaching upon someone's freedom of 'choice'. If they want to be restricted in expressing themselves then so be it - it's their personal 'choice'. If there are enough complaints to the regulatory then perhaps they can ban it. But for that they have to release it uncensored first. This holds true in the case of some of those games - particularly since the reason for censorship doesn't seem to be something that majority of the people would object to or care to object to.

[Saturnine Tenshi]

And the trouble with giving society an option to choose is that you're going to end up with people who are vocally offended but may not represent that society as a whole, too.

 

Trouble with leaving that to a board should be evident as well.

[WTF]

To be fair, the vocal minority who protest about something in media won't really get it pulled down unless it represents a significant percentage of the viewership and before it gets taken off it gets reviewed. Systems are in place for such a contingency.

If the vocal minority were actually capable of change we'd basically be living in a completely different world where one day the some nutjob rightwing groups come into power and the next day some nutjob leftwing comes into power.

 

There are no absolutes and the only time they appease vocal minorities is if they gain something. This much is fairly evident in society. If a vocal minority were powerful then the Kurds would have a nation by now just like how Israel came into being back in the day. There was a reason Israel came into being and there's no proper Kurdistan - those in power had something to gain from it. But that's a different topic since it's entering politics more than gaming.

 

Giving them an option to choose doesn't make things any different but it does protect an individuals right of choice. The individual isn't representative of the group. What we have now is no right of choice for the individual on some matters that are irrelevant to the state but matter to an individual. Consumption of media that does not destroy the fundamental values of a nation is pretty much that.

[Saturnine Tenshi]

And the Jews wouldn't have (undeservedly) been given Jerusalem.

 

The trouble is, and this is important, that the vocal minority often influences the majority because they're so vocal. Whether they're right or wrong in the scope of whatever it is they're dealing with or whether it actually sits well with the values of the majority doesn't matter.

 

But i'll agree with the overall sentiment of the last statement insofar why it's there. Though I don't believe it should be there for that.

Edited June 28, 2013 by Saturnine Tenshi

[TheMightyEthan]

This isn't to do with freedom of speech as much as the unwillingness to be a ratings body that would expose the public to some of the film's content.

This isn't to do with freedom of speech, we're just prohibiting someone from expressing a particular viewpoint.

 

If the public doesn't want to be exposed to it THEN DON'T WATCH IT!  It's not like the film being permitted to be distributed in the country is the same as saying you have to go see it.

 

Otherwise what's the point of giving such powers to organisations like OFCOM and FCC?

This argument presupposes that those organizations should have that power, when my argument is that they shouldn't.  At least as far as non-broadcast media goes (games, theaters, home video, etc).  I'm okay with restrictions on the content of over-the-air, non-subscription media because there's no way to avoid having that thrust at you.  I would liken broadcasting a movie to showing it on a billboard on a public street, where people could be subjected to it without their consent or forewarning, but outside of that context* I see no justification whatsoever to limit what can be distributed to willing adult consumers.

 

*This is actually an overstatement, as I can also understand banning media depicting actual criminal conduct when the conduct was performed for the purpose of creating the media (child porn, snuff films, etc), but there the justification is to deter people from committing crimes for the purpose of recording it and selling the recording, not to prevent the audience from seeing it.  I don't know how it works in other countries, but in the US you can make all the porn you want where the characters are minors, as long as the actors aren't minors, just as you can make films where a character gets murdered as long as you didn't actually murder an actor.

[Thursday Next]

No one is preventing anyone from distributing anything. Tom Six is just not allowed to sell it. If his "speech" carries an important message that the world needs to hear then he can give his film to anyone he likes.

 

The VRA 1984 says "The supply of a video recording by any person is an exempted supply if it is neither (a) a supply for reward, nor (b)a supply in the course or furtherance of a business."

[TheMightyEthan]

Well that certainly makes it seem less oppressiony...

[Mr. GOH!]

Suppressing the market for specific types harmless expression because some folks, who wouldn't ever have to see or hear it, don't like it. Seems legit.

Edited July 2, 2013 by Mr. GOH!

[TheMightyEthan]

Not saying it's right, just that it's better than barring all distribution.  Doesn't entirely suppress the viewpoint, just the commercialization of it.

 

Question:  what if I charge for the game/movie/whatever, but am doing it as a nonprofit, and the charges are solely to cover the costs of producing/distributing it?  That would seem to me to be neither supplied for a reward nor in the furtherance of a business, but I am obviously not well-versed on UK law.

[Thursday Next]

Good question. If you wanted to read it as harshly as possible, "furtherance of business" could even be extended to self promotion which would make distributing the stuff even for free prohibited (but I think that would go too far).