The Video Recordings Act 1984 makes it an offence to supply a recording containing a video work without BBFC classification.
Video games which are not video works, or which are not supplied as a video recording, will not require classification from the BBFC.
The question in each case is therefore whether a video game is a ‘video work' and, if so, whether digital distribution of that game will constitute supply of a video recording.
Generally speaking, any video game which displays certain categories of sensitive material (such as acts of gross violence towards humans or animals) will be a video work. For this reason, many video games, such as Rockstar's Manhunt 2, require a BBFC certificate if they are supplied in a video recording format.
The Video Recordings Act applies only to the supply of video recordings. But what is a video recording? The Act defines video recording to include any physical device which is capable of storing data electronically – such as CDs and DVDs. Supply of a game like Manhunt 2 (clearly a video work) through High Street retail outlets therefore requires full BBFC classification.
However, digital distribution of a game over the internet is very unlikely to be a supply of a video recording – as the game is not supplied on a physical device – and BBFC classification is therefore unlikely to be required.
Some have suggested that this is a 23-year old loophole in the law, but this may not actually be the case.
The Act was last updated in 1995, with its scope increased to capture the new DVD market, and concerns were raised at this time about the potential for internet downloads of video recordings. In view of this, it seems less likely that the exemption for digital downloads is a loophole in the law, and more so the intention of legislators not to give BBFC the authority to regulate digital downloads.
So what's the future for digital downloads? At this point in time, the potential market for video game digital downloads remains relatively unexplored.
However, it is equally true to say that digital downloads are growing in popularity as a means of supply and, with the recent furore surrounding games like Manhunt 2 and Rule of Rose, the BBFC may wish to seek further powers to classify downloadable video games.
Whether or not this will happen will undoubtedly be influenced by the outcome of the Byron Review. For the time being, the whole issue remains a case of ‘wait and see' for the video games industry.