The brief note did not elaborate on the extent of the ESRB's jurisdiction over such matters. "We recently received a ruling from the ESRB stating that the two officially released Dark Sector gameplay montages have been deemed to contain excessive or offensive content; and to this end are not to be available for download or viewing, regardless of being placed behind an age gate," reads the request. "In order to comply with this ruling, the ESRB has requested that the two Dark Sector gameplay montages be pulled immediately upon receipt of this notice and no longer made available for view by consumers."
D3 noted that "this in no way effects the final gameplay content of Dark Sector," suggesting that the ESRB may have different standards for video content released over the internet and in-game content purchased at retail. Dark Sector has not yet been content rated by the ESRB. The ESRB maintains separate age gate requests for trailers from games rated Mature and Adults Only.
Shacknews regularly receives publisher notices relaying ESRB judgments of gameplay videos, but generally such messages only concern putting videos with Mature-rated content behind an age gate that theoretically restricts the videos from being viewed by those of insufficient age.
One such notice was delivered today by 2K Games, which stated that the most recent trailer from Starbreeze's The Darkness must be placed behind an age gate restricting the video from being viewed by those under the age of 17. While the note is not unusual in its basic request, it does include a telling disclaimer. "The ESRB requires that all trailers for Mature ("M") and Adults Only ("AO") rated games be appropriately age-gated," it reads. "Game publishers that do not comply with the age gate requirement are subject to enforcement actions by the ESRB."
The mention of unspecified "enforcement actions" by the ratings organization implies a contractual relationship between the two entities on the matter. Shacknews has contacted 2K Games for further clarification.
There was no explicit mention of penalties in D3's statement. Shacknews contacted the publisher regarding that point and received a general response from representatives, who declined to comment beyond the ESRB's official statement (see below).
Update: ESRB president Patricia Vance has released the following statement:
"The ESRB's Advertising Review Council (ARC) regularly monitors game ads and trailers to make sure that they adhere to industry-adopted Principles and Guidelines for Responsible Advertising Practices, which were established in 2000. Since 2005, ARC guidelines have required that trailers for M-rated games on publisher websites be displayed behind an age gate to help restrict viewing to those visitors who are 17 and older. Game publishers are also required to use best efforts with respect to ensuring the presence of age gates on third party websites that display their M-rated game trailers. If a third party site insists on carrying a trailer for an M-rated game without placing it behind an age gate, our guidelines require the publisher to request that such trailer be removed and/or provide an edited version of the trailer to be used in its place. "However, the mere presence of an age gate does not permit a publisher to simply put whatever content it wishes into the trailer. All trailers must still conform to ARC's Principles and Guidelines, which prohibit the display of excessively violent content or any content likely to cause serious offense to the average consumer. When ESRB notifies a publisher that the content in a trailer is in violation of these ARC requirements, or that there is an age gate issue on a third party site, that publisher then must notify third party sites to rectify the problem. The notices issued recently by game publishers to third party websites are simply that - steps in a chain of publisher compliance with ARC guidelines and the ESRB enforcement system that have been occurring since their establishment seven years ago."
The ARC guidelines in question specify a number of types of content--including various levels of depictions of violence, drugs, sex, sacrilege, and more--deemed taboo in advertising for interactive media. While these guidelines and the age gate requirements have indeed been in place for over a year, it appears that the ESRB may currently be taken a more stringent approach to their enforcement than has been taken in the past.