Switzerland introduces new rules on youth protection in video games (Part 2)
Introduction
In an earlier article, we have discussed the goals, scope, relevance, and timeline of the forthcoming Swiss youth protection legislation in relation to the video games industry. Further, we discussed how industry standards will likely be declared generally binding within two years after the entry into effect of the relevant legislation. The legislative package consists of the Federal Act on Youth Protection in the Sectors of Film and Video Games (“Youth Protection Act”, YPA) as well as the Federal Ordinance on Youth Protection in the Sectors of Film and Video Games (“Youth Protection Ordinance”, YPO). The final version of the YPO has not yet been adopted by the federal government.
In the present article, we review the outcomes of the public consultation in relation to the draft youth protection ordinance (YPO) to which the federal government invited cantons (regions), political parties, national business associations and any other interested parties. Within the timeline set until 6 October 2023 many stakeholders expressed their views on the draft ordinance along with their demands for amendments. We identify in this article the more controversial aspects of the YPA and YPO.
Overall approval
Switzerland is a federalist, decentralised country in which the cantons (regions) enjoy far-reaching rights and in many legislative areas the exclusive (and sometimes shared) powers to pass legislation. Even in areas where the federal level is empowered to pass legislation, the views of the cantons on legislative proposals are taken seriously.
Most cantons have signalled support for the draft wording of the YPO during the consultation phase. While most cantons did bring forward a couple of demands for amendments, they overall support the YPO. Equally, most political parties, from left wing to mid-right wing, assess the draft wording of the YPO favourably. Having said that, the liberals/FDP criticise a financial and bureaucratic burden, while the social-democrats and greens hold concerns regarding data protection, reason for which they want to suspend the ordinance until a newly created electronic identity becomes available (e-ID).
The support by the cantons and most political parties often means that a draft ordinance will ultimately be adopted by the government, largely in the form as submitted for consultation. Yet, in the present case there are a couple of concerns that may need to get addressed for the YPO getting adopted.
Disagreement and controversial points
While the draft ordinance has found overall approval among most political parties and cantons, there are nevertheless a few controversial aspects that have been criticised in the consultation by some stakeholders. They relate to the age verification process, data protection concerns, federal powers versus cantonal (regional) powers and last but not least the suitable timeline for the act and ordinance to come into effect.
Age verification
The most critical assessment of the draft YPO came from societal groups and trade associations that regularly intervene for the interests of technology, communication and digital businesses and / or against state interferences with individual rights including data protection rights (Asut, Swico, Digital Society; Pirate Party, Swiss People’s Party).
According to the draft YPO users wishing to use video game offers must first have their age checked by way of a procedure that allows for a correct identification of the accurate age. In the views of many, this leads to a de facto ID requirement and is thus seen critically in regard to data protection, especially for those users who are above 18 years old. And some also doubt the effectiveness of this measure.
The Pirate Party that had (unsuccessfully) launched a referendum against the primary legislation (YPA) sees an infringement of individual / human rights caused by the ID verification requirements; they add that minors could easily find a way around these measures (for example with VPN or Tor-Browser).
Numerous stakeholders support the view that it would be best to first wait for a legislative package on nationwide electronic IDs that is under consideration in the federal parliament. The costs to implement new technological solutions regarding age verification seem inappropriate as they would in any event take time and one might as well wait for the nationwide e-ID solution. The technological solutions established for an early entry into effect of the YPO would become unnecessary shortly after. The e-ID would be a better option with less data made available to third parties (Asut, Swico, digitalswitzerland, Digital Society).
These considerations have led many stakeholders to conclude that the proposed timeline by the federal government for the implementation of the YPA and YPO is not sufficient and the date of entry into effect should be pushed back from 1 July 2024 to at least 1 January 2025 if not 1 July 2025. This postponement should then allow for the sufficient time for necessary changes, ideally up to the moment when the new e-ID will become available.
International video games industry
The Swiss Interactive Entertainment Association (SIEA) too opposes the mechanical / physical age verification with a Swiss ID or passport. SIEA represents large international game publishers, distributors and developers. They argue their position notably with the fact that only part of the inhabitants of Switzerland hold a Swiss ID and / or passport. A quarter of the population does not hold Swiss nationality and would thus have limited possibility to have their age verified. In SIEA’s view, a mechanical control of foreign passports is too complex.
The video games industry further fears a so-called insular solution leading to disproportionate efforts from industry with the Swiss regulatory approach only being applicable to Switzerland combined with the necessity to be implemented in at least three languages (German, French, Italian).
Microtransactions
In recent years, loot boxes and in-game microtransactions in video games have stirred a lot of regulatory discussions in Europe and beyond. Prominently, the Gaming Regulators European Forum (GREF) came out with warnings towards industry to adequately address ‘gambling-like’ features and were concerned about blurring lines between gambling and gaming. Some regulators also opened sanctioning proceedings against video game publishers. In the Netherlands, the highest court ultimately found in favour of the game publisher.
It may thus come all the more as a surprise for foreign observers that the issue of microtransactions has created little echo in the consultation phase. It was mostly political parties from the left wing that asked for improvement of the YPO to prohibit or limit microtransactions.
Powers between cantonal and federal level
Finally, many cantons have expressed their disapproval regarding the foreseen dominant role of federal powers in the conducting, supervision and coordination of compliance tests / checks on video game offers. Many hold the view that the division is not effective and only the cantons should be responsible for the test aspect as they already hold testing experience from other fields and do not need the federal government to override their cantonal powers and experience. They also wish to keep things efficient and minimise the risk of duplicated parallel work. For the largest political party of Switzerland, the Swiss People’s Party, this power shift away from cantonal powers towards the Federal Social Insurance Office (FSIO) constitutes a major failure of the YPO.
Timeline and Outlook
The intention enshrined in the draft YPO has been that both the YPA and YPO would follow an incremental entry into force, with the first part already getting implemented by 1 July 2024. The second part, including the provisions on the general applicability of youth protection standards, would then depend on the timing of the request by the video industry towards the Federal Social Insurance Office / federal government. According to the YPO, the second part would only enter into effect at a later date along with the declaration of a generally binding effect of industry standards by a decision of federal government. The industry has a maximum of two years to successfully bring in their request.
Given the critical assessment of the intended entry into effect date of 1 July 2024 by numerous stakeholders, it would not be surprising if the federal government decided to postpone the entry into effect.