Switzerland introduces new rules on youth protection in video games (Part 1)

Introduction and Relevance  

In autumn 2022 the Swiss Federal Parliament passed a new Federal Act on Youth Protection in the Sectors of Film and Video Games. The new act will only enter into effect with the parallel adoption of a federal ordinance that is supposed to clarify numerous aspects of the act. Both the act (“Youth Protection Act”, YPA) and the ordinance (“Youth Protection Ordinance”, YPO) are highly relevant for the video games industry and the esports scene in Switzerland.  

Various aspects of the YPA and YPO are intertwined with other legislative fields such as legislation on national electronic identity documents, test purchases and age checks in other fields of consumer or minor protection as well as data protection issues. Equally, the concerns that have been expressed in relation to the new legislative package relate to these fields.  

In a series of articles, we discuss the forthcoming legislation and its impact on video games and esports. In this first article we provide a high-level overview on the scope of the legislation and the expected timeline.  

New legislation: goals and scope  

The new federal legislation aims to protect minors from certain contents in films and video games that may jeopardise their physical, mental, psychological, moral or social development. It will apply to the actors in the film and video gamesindustries, both within their commercial activities, that is, natural or legal persons that produce, rent, distribute or trade films or games as well as providers of audio-visual media and on-demand services and organisers. Providers are understood as those that make films or video games available to consumers and organisers are understood as making films and video games available to consumers at public events.  

By contrast, the YPA excludes operators of ‘money games’ from its scope as the latter are subjected to separate specific legislation (Gaming Act 2017, entered into effect in January 2019). Equally, commercials (advertisements), articles by media outlets and Swiss public TV and Radio programmes are exempted from the scope.  

The YPA and YPO address requirements regarding youth protection, age indications and age control, content description as well as the powers to execute the implementation and surveillance of the law and checks on sale’s practices. It further foresees measures to foster media competence and prevention.  

Industry standard in relation to age rankings  

The legislation tries to strike a balance between public supervision and interference on the one hand and individual responsibilities, including notably parental control and parental responsibility on the other. Parents shall get educated about and sensitised to the risks of films and video games. The film and video industry overall have welcomed a focus on facilitating parental control measures and so have youth and psychologist associations.  

It is fair to note that the new legislation is industry-friendly in the sense that the major console and video game publishers will enjoy the possibility to see their age ranking systems more or less recognised by the federal government. A major part of the YPA (art. 9-19) addresses the procedure under which industry classifications such as PEGI or USK could get general binding effect on all industry actors. Within two years of the entry into effect of the YPA, the respective industry body can request such binding ‘declaration’ from the federal government which will make the respective standards binding also to non-members of the industry body. Only if no industry standard had been declared binding or the declaration had been withdrawn, the government would be entitled to pass its own rules on such standard.  

The standard that will ultimately be declared generally binding by the federal government does not necessarily have to be identical with industry standards like PEGI or USK. Yet, the political process and accompanying documents of the government bill suggest that the generally binding youth protection standard will ultimately be at least informed by pre-existing industry standards.  

The Pan-European Game Information (“PEGI”) is an age rating system that has been around for approximately two decades in Europe and that was developed by the Interactive Software Federation of Europe whose membership base consists of the major console manufacturers and publishers and developers of interactive games. “USK” on the other hand is the video games industry’s organisation for self-monitoring in Germany, powered by the German Games Industry Association.  

Timeline  

After the adoption of the federal act on 30 September 2022 by the Federal Parliament societal groups launched a referendum against the newly adopted act. Under Swiss constitutional rules, the federal government must hold a national referendum on a parliamentarian act if referendum groups manage to submit at least 50’000 (certified, valid) signatures to the federal chancellery.  

Accordingly, the Swiss ‘Pirate Party’ launched the referendum and collected signatures against the law, supported by further societal groups and critics of the law. Since they failed to collect sufficient signatures parts of the YPA and the YPO may enter into effect as early as 1 July 2024. This date is stipulated in the draft YPO; however, things might as well get postponed given reactions to the draft YPO.  

The federal government instructed a consultation of its draft ordinance among the cantons (regions), political parties, national business associations and any other interested parties during which they could express their views on the draft ordinance along with their demands for amendments. The consultation period ended on 6 October 2023, and we will discuss its major outcomes in a subsequent article.