The following article was originally written by Andrea Rizzi of www.insightlegal.it and published by me here on the blog in German.
Italy has recently published its first state system for age rating and classification of content. On 12 April 2019, the Italian Regulatory Authority (AGCOM) published the new regulations, which (i) audiovisual works intended for online distribution, as well as (ii) include video games.
The new regulations, which entered into force on 13 April 2019, define the general framework of the new classification system and leave it to AGCOM to regulate practical, operational and other important details through the further tailor-made guidelines.
On 1 August 2019, AGCOM published the guidelines, which fortunately clarify some dubious points in the text of the regulations themselves and provide the operational guidelines necessary for compliance and enforcement.
The Guidelines were put into force from 2 August 2019. However, companies will be given until 30 October 2019 (i.e. 90 days from the date of publication of the guidelines) to comply with the new rules and classification system.
THE NEW SYSTEM APPLIES TO VIDEO GAME CONTENT MADE AVAILABLE TO CONSUMERS RESIDENT IN ITALY.
The new classification system applies to video games (defined as “multimedia works with a game character made available through any communication medium that enables it to function”) and video game content, but the rules and guidelines so far, they have been silent about the geographical scope of the new system.
In the opinion of my colleague Andrea Rizzi, it should apply to video games distributed offline in Italy or made available online to consumers resident in Italy, but the colleague hopes that AGCOM itself will soon clarify this point.
WHO WILL HAVE TO ENSURE COMPLIANCE?
The rules clearly state that the service providers who make video games and video game content available to the public are primarily responsible for compliance with the new rules and the new classification system. In particular, the regulations define “online service providers” (provision of video game content) as: (i) service providers that have editorial responsibility for the platform on which the content is provided, and (ii) Hosting providers within the meaning of the E-Commerce Directive (i.e. Directive 2000/31/EC).
However, as far as the question of accountability is concerned, the guidelines allow for a high degree of flexibility for the parties, i.e. for the providers of content on the one hand and for the platforms that provide content, on the other hand, to to agree between the two with regard to the new rules.
This should presumably mean that AGCOM must take into account the specific contractual arrangements of the parties in order to determine who is actually responsible for compliance with the regulations, without AGCOM relying on the common and multiple responsibility of both the content provider and the platform.
WHAT IS THEN WITH PEGI?
The guidelines have confirmed (albeit with a wording that creates uncertainties) that the new AGCOM valuation system is not in addition to the PEGI rating system, but merely an alternative to it. This means that video games and video game content offered on the Italian market must match either PEGI or the new AGCOM system.
This means that the new AGCOM classification system becomes relevant only to the extent that a video game (which is intended for distribution in Italy) does not have a PEGI rating.
Here are the guidelines:
A) Video games that have already received a PEGI rating (or have applied for a PEGI rating) at the time of entry into force (i.e. 13 April 2019) are deemed to be compliant with the new rules and may, as usual, be legal on the Italian market whether they are already marketed in Italy or placed on the Italian market after the entry into force of the rules);
(B) Video games which have not yet entered the PEGI classification process at the time of entry into force of the Regulations should, with effect from 30 October 2019, indicate the appropriate age classification in accordance with the table annexed to the Guidelines, which (and only) contains the PEGI as well as the Italian / AGCOM age groups and content descriptors.
However, the honourable Member points out that the wording of the guidelines is still somewhat unclear as to how the new rules will apply to the status of video games that did not enter the PEGI classification process at the time the regulations entered into force. However, in view of the principle of equivalence between PEGI and the AGCOM valuation systems, as set out in Article 11.2 of the Rules and expressed in Section 2 of the Guidelines, there should be no doubt that, if a video game has a PEGI rating, regardless of when the PEGI rating has been applied for or actually received, or indicates the AGCOM rating, may be legally marketed on the Italian market.
HOW DOES THE ITALIAN CERTIFICATION PROCESS FOR THE NEW AGCOM SYSTEM WORK?
The Italian classification system for video games is based on the concept of self-certification. The parties who bear the burden and responsibility for compliance must assess the nature and type of content and assess the appropriate age classification on the basis of the information in the table annexed to the AGCOM Guidelines and the information provided for each of the Italian/ AGCOM age groups.
As part of its monitoring and enforcement activities, AGCOM is entitled to request the party responsible for compliance with the regulations to provide information and related documents that enable AGCOM to the correctness of the age classification made by the party.
This information and documentation should include:
(i) the title of the video game, the public version of the software and any other information that makes it possible to identify the parties involved, and the review of the case by AGCOM (e.g. information about the developer, the publisher, the platform, the publication date);
(ii) the indication of all critical content based on age classification (e.g. bad language, discrimination and hate speech, drugs, fear, gambling, sex, violence and in-app purchases);
(iii) content material (images and/or video material) to explain and support the age classification made by the party.
DOES THE NEW ITALIAN CLASSIFICATION SYSTEM FOR VIDOEGAMES FUNDAMENTAL OF PEGI?
The two systems have significant similarities, e.g. the criteria for determining the appropriate age class for a game and the relevant descriptors to be used are almost identical.
The main difference between the two systems is that the Italian system includes an additional age group for children between 4 and 6 years old, which PEGI does not have. Otherwise, the age groups, pictogram colors and content descriptions are identical to PEGI.
This class was added – as far as the colleague can judge – against the recommendation of PEGI / ISFE and the Italian Publisher and Developer Association (AESVI) to increase the protection of the youngest players, as computer games significantly increase interactivity Have.
AgCOM’s practical/operational guidelines, which deal with where and how the pictograms and descriptors are to be displayed in physical and digital products, are also the same, which, of course and inevitably, also include esports and advertising. and online sales confirm that the AGCOM system is essentially geared towards the PEGI system.
In particular git:
– Whenever the video game is rated according to PEGI, compliance with the latest version of the PEGI Code of Conduct in terms of labelling, advertising and promotion should be sufficient to comply with the new Italian rules;
– Whenever the video game is evaluated according to the Italian/AGCOM classification system, the guidelines make it clear that (i) with regard to labelling, some specific – but not particularly onerous – labelling requirements (e.g. specific pictogram size) should be complied with, while (ii) refers to the relevant sections of the PEGI’s latest Code of Conduct in relation to advertising and promotion.
DO THE NEW RULES HAVE TEETH?
In the event of non-compliance, AGCOM may notify the infringer within 10 days to comment on the defence and then decide whether one or more fines of between €25,000 and €350,000 should be imposed.