WH Smith suffers from video nasties

If ever a computer game was designed to cause a stir, the recently released Kingpin offering certainly hit the mark.

It has already lead to WH Smith being fined £5000, plus £1000 in costs, at Harrow Magistrates' Court, after the newsagent sold a magazine last summer which included a demo version of the game on a free CD attached to the cover.

But why all the fuss? Kingpin was the brainchild of Interplay, which published Carmageddon, and Xatrix Entertainment, which developed Redneck Rampage. You get the general idea.

But Kingpin has polarised games reviewers. Some have marvelled at its action graphics and story line, while others have condemned it for the continuous swearing of both the gangster figure that wreaks bloody revenge and his former partners in crime.

Some cynics might argue that the stir caused by the demo version of the game has done it no harm at all, and that the penalty paid by WH Smith simply amounted to free publicity for the creators. In future, game makers might be tempted to up the ante with their preview copies simply to engender a similar degree of fuss.

But the case raises other questions about games classification that are only likely to become more complicated and messy as software becomes increasingly available for download from the internet. In court, the argument was made that the game did not carry a rating by the British Board of Film Classification (BBFC).

Dai Davis, a consultant lawyer at Nabarro Nathanson, said: "Video film classification legislation requires that anybody who is involved in distributing a video or game is committing an offence if the film they are distributing doesn't comply with the legislation."

"Though the video game is a hybrid genre, technically you are distributing a film. It's just the same if it's on a disc. In just the same way, if you issue a film on the internet, you should theoretically get it classified by the [BBFC] for those purposes," he explained.

Davis points out that WH Smith was the target for prosecution simply because it was located on Harrow Council's patch. "The publishers may be located somewhere else. If they wanted a really soft target, they could have chosen 'Mr Patel's' newsagent. The council is perfectly entitled to take action," he said.

Heads and brick walls
"But the more politically astute councils realise that, given the proliferating content of new media, such prosecutions are like trying to stop the floodwaters of the Atlantic with a bucket and spade," he continued. "What political point are they trying to prove? It's a waste of public money."

And Davis may well have a point. WH Smith's fine was, in essence, merely a slap on the wrist. Even if the magazine's publishers had been the target of the legal action, a £5000 penalty in no way equates with what it actually costs to give a CD away with a magazine. Depending on how many are printed, the exercise can cost anywhere between £10,000 and £40,000 for duplicating the CD alone.

Moreover, even though the court was told that Kingpin received no rating from the BBFC, the fact is that video games are generally rated by an organisation called the European Leisure Software Publishers Association (ELSPA). This is a self-regulating body that was set up in the wake of the tabloid 'video nasty' furore in an attempt to stave off outside interference in the form of parliamentary legislation.

A BBFC spokeswoman said: "We do classify some video games when they fall under the Video Recordings Act (VRA). It usually happens when they are particularly violent or they portray human sexuality, or if ELSPA isn't sure about a game, or is unhappy about whether it falls under the VRA. A huge majority of games don't."

In fact, during the whole of last year, the BBFC only classified 21 games. "The vast majority of games are classified by ELSPA. We work closely with them. They have their own age classification as well. It's not just a matter of getting an ELSPA stamp," said the spokeswoman.

While she denies that there is any truth in the urban myth that an erect penis cannot be shown if it is at a greater angle than the Mull Of Kintyre, she says there are specific criteria that the BBFC apply when assessing the suitability of games. They are currently classified into four age groups: three to 10, 11 to 14, 15 to 17 and 18+.

"It depends on the age range," she explained. "Things like, for instance, the type of violence a game might contain. If the game has obviously non-human characters being shot and there's green slime, then it would get a lower classification than, for instance, a game involving human characters."

A case in point is Carmageddon. In this instance, the publishers swapped the blood found in the original game for green slime because they hoped it would cause less of a fuss and lead to a swifter decision on classification from the BBFC.

Mutual co-operation
But the BBFC and ELSPA currently co-operate with each other to their mutual benefit, and the arrangement appears to work. ELSPA ensures that the industry is by and large left to its own devices, while the BBFC gets on with assessing levels of violence, sex and slime.

"One particular distributor preferred to have a BBFC classification rather than an ELSPA classification, but that isn't very common," continued the spokeswoman. "And yes, we do classify 15 as well as 18. And it may well be that the 18 game came in because ELSPA wasn't sure one way or another. It decided to play safe and sent it to us."

But will this ad hoc arrangement still work in the case of people downloading games from the internet? "We have no control over the internet. We have jurisdiction when something is actually sold or rented in the format of a disc or video. If you download something from the internet, it goes straight into your computer. So we can have no control over that," she said.

So this may mean that, as online game demos and previews become increasingly popular, court cases such as the WH Smith one will become a thing of the past. But at the same time, it also raises questions over whether in the long term, the games industry should be allowed to continue regulating itself.

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