Obviously, retailers themselves would be the most likely to be found in infringement, as they are the ones who are selling the games at retail. However, remember that distributors and publishers are responsible for selling the games to the retailers in turn. The potential impact on the industry through this chain of sales seems as if it could be quite severe.
How could this even happen? So far, the Classification Board has been unaware of these video game titles bypassing their system -- their task is simply to process the classification applications that are presented to them.
Most publishers are compliant -- even assiduously so -- about getting their non-MMOG games rated. While World of Warcraft (and its expansions) has no Australian classification that we can locate and no ratings label, every other Blizzard title does.
We believe that the whole issue seems to be one of oversight. That publishers and distributors at some point misunderstood their obligations with respect to MMOG classifications in Australia, and operated under the belief that no such rating was required here. Game development/publishing (and particularly MMOG development/publishing) is a fairly close-knit industry, and popular snippets of wisdom tend to get around, until "everyone knows" them.
The problem is, that what "everyone knows" is often actually wrong, in practice.
Indeed, back before the attached Office of Film and Literature (OFLC) branch was merged with the Federal Attorney-General's Office it appears that the Classification Board themselves may have advised publishers (even up until comparatively recently), that classification of MMOG titles was not required. When we first contacted a representative of the Classification Board, they told us the same in an unofficial capacity -- however when the Federal Attorney-General's Office made an official statement, they assured us that the MMOGs were in no way exempt from classification -- as you have read above.
The developers/publishers
We spoke to a major MMOG developer and publisher (who requested that they not be named), and asked what they understood the MMOG ratings requirements to be in Australia. Their spokesperson said that their understanding was that MMOGs were not a part of Australia's ratings and classification system. Their MMOG titles are among those that are sold without classification in Australia.
Simply put, they haven't submitted their MMOGs for classification, because they believe that it is not necessary for them to do so. That belief may have been fostered by erroneous advice from the Classification Board or OFLC themselves at some time in the past.
The retail staff
This perception seems to have trickled all the way down to retail stores, who are stocking unclassified/unlabeled games on their store shelves, and seem completely unaware of any particular obligations in this respect. Generally, you cannot blame the staff behind the counter.
Many retail employees, particularly in large chains -- but not confined to just those -- don't even seem to be aware of the ratings or that they might be important, and that's a failure of education, training or company policy.
It is statistically unlikely that every retail staff-member is unaware of the requirements, however we weren't able to find any who were aware that the games that they sold required classification and compliant ratings-labeling even though we spoke to a number of staff at Australian retail-chains and specialist game-stores.
So, what happens now?
Well we're not sure, exactly. We contacted Liz Armitage, the manager of Media and Communication at the Victorian State Attorney-General's office, to see if she could shed some light on the procedures of reporting and enforcement. Unfortunately, after some delays the Victorian State Attorney-General's office was unable to furnish any additional information in response to our queries.
The worst-case would see considerable fines levied to all culpable parties. What we think is more likely, though would be token fines and the withdrawal-of-sale of all of the unclassified or improperly labeled titles until they can be properly rated through the Classifications Board. Obviously titles that then are determined to be RC (Refused Classification because the content falls outside of the rating system for games) would not go back on sale. Can these parties be fined for getting bad advice from those government bodies? Absolutely they can, but it would be poor form to do so.
All in all, it is almost astonishing that a misunderstanding of this scale has gone on for so long. The situation itself represents a considerable speed-bump for MMO gaming in Australia, and we'll be watching closely to see what happens next.
Update: See also: Digital downloads from outside the Australian jurisdiction are potentially exempt.
We've also been contacted by a reader who has found that a boxed copy of an MMOG on his shelf that did not get rated in Australia, has a nice shiny M15+ Australian ratings sticker on it. It isn't clear at what point after manufacture it may have been put on the box.
