ESRB Demands Removal of Hosted Videos (Updated)

By Chris Remo, Jun 25, 2007 4:10pm PDT In a request sent to numerous gaming media outlets, including Shacknews, D3Publisher of America has requested on behalf of the Entertainment Software Ratings Board that two previously released gameplay videos taken from Digital Extremes' upcoming shooter Dark Sector must be made unavailable for download.

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.

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44 Threads | 130 Comments
  • What I still dont get is that they are complaining about an ad for a game they refused to rate... so since the publisher is not using the ESRB logo anywhere then the ESRB has no say in the matter - there is no agreement between parties to the contract.

    This would mean that if a little independant publisher makes a lot of games for the, ahem, mature audience, then makes one for normal people and gets a rating for said 'normal' game, the ESRB can then go back and tell them to remove all advertising material for the unrated games?

    Now clearly Im wrong, as that's crazy - but where am I wrong?

  • I don't see what the question is about enforcement. Publishers (I don't know about websites) cannot use the trademarked ESRB ratings without following whatever stipulations the ESRB sets and I am sure it is set into contract form when a game is submitted for rating.

    What I don't see is how the ESRB can request a third party website (or magazine for that matter) to display something behind an age gate. As Chris Remo has pointed out, only publishers who own copyright on the materials can (and are perhaps obligated) to follow the dictates of the ESRB, and can request sites to put up age gates or pull videos. One wonders if a publishers can even make such demands without a contractual relationship with the third party if they are freely distributing the marketing materials to other sites without a contract. Whether the ESRB could try to police third parties based on the "use" of their trademarks is questionable as well.

    What I find disturbing is that the ESRB seems to be pro actively censoring games that have <b>not been submitted</b> for rating by them. My guess is that the trademark use agreements they have with publishers might cover games in development that have yet to be rated. This gives the ESRB a great deal of pressure it can apply to censor (the marketing at least) of games that are not even finished yet. In effect they are a both acting as censor on rated games and as a censor over all game marketing (from publishers with rated games already, or who really must have one).

    If we believe in freedom of speech (or expression or ideas) then where do you draw the line over the marketing of those ideas and who gets to do it?

    Consider that when you go rent movies for your own use (not for the kiddies) do you even care what a product is rated or if it is? Aren't ratings mainly to determine what others should get to see? Ratings are constantly marketed as content guides for consumers, but the fact that they also use terms like restricted and no-one, ought to clue people in that they are really a censorship tool rather than a guideline for self censoring. I admit it is a fine line but I also think a dangerous one to cross. The question is why is there any legal enforcement of non-gov ratings in the USA?

  • I don't understand this story, wouldn't the excessive or offensive content be enough to push this game to a different rating if the ESRB deemed that it should be taken down regardless of precautions. It's obviously not since D3 stated that this will not change the finalized game play, but it still makes no sense to me. I guess my question is, whats the harm in seeing it if you are going to end up seeing it anyways? Also, if you are offending by it, shouldn't you be glad that you found out the extreme nature of the game beforehand rather than spending the 60 dollars to find out?

    Also the 'enforcement actions' comment made by the ESRB kind of bothers me, they do realize that an age gate is basically implementing the honor system over an anonymous network with very little consequences for lying.