November 29, 2021

Nintendo, Microsoft and PEGI – An Age-Old Concern…

A lot is being made of the time-restricted nature of 18+ downloads on the new Nintendo eShop. Some have laid the blame at Nintendo’s doorstep, others at the nature of German law – a law Nintendo has to operate under being based in Germany. But there’s a third issue; PEGI itself, and its own archaic rule set…


Last week, Nintendo came under fire for its restriction of adult-aimed content.

More specifically, that games and content aimed at an 18+ demographic is time locked, and only accessible during the hours of 11pm-3am. Some found this patronising, others amusing and some found it disturbing. Indeed, it took a little while for Nintendo to confirm part of the issue is that as Nintendo of Europe is based in Germany, that it needs to restrict its content in guidance with German law, specifically stating that any content aimed at an adult audience needs to be restricted by USK guidelines to between 22:00 UTC until 4:00 UTC.

Except that’s more relaxed than the PEGI-inspired restrictions of between 11pm and 3pm. So why is it that German rules are more relaxed than the PEGI ones?

Well, I did a little digging and it would appear that in order to comply or to woo the German market, there were some quite serious concessions instigated, moreso on its treatment of adult-themed content. Whilst 18+ content can be legally restricted for sale in most European countries as rules and laws were already in force, the online world was far more relaxed and open to debate and it was decided that the system would comply with the Unterhaltungssoftware Selbstkontrolle (USK, Germany’s self-regulatory body for games and movies) rules. This meant that they would have to restrict content to certain hours to fulfil the criteria. Arguably, this originally applied to Television but has since found itself being implemented in the gaming sphere as well, ensuring frustration for many, moreso as PEGI isn’t a legally recognised system in Germany – or many places, actually. Don’t ask, it’s all Greek to me. (Oh god, did I just do an EU joke? I deserve to be slapped…)

It also comes into play that PEGI itself has some interesting views on the restriction of content. For example, let’s take Article 11, section vii;

Seriously, I’m not making this up! It really does say that!

For those who can’t see the image, it reads, and I quote; “Signatories shall not enter into promotion of Products rated 16 or 18 with another company’s brands, products, or events, if it is reasonable to believe that such company’s products, brands or events will reach consumers for whom the Product is not rated as appropriate.”

If that seems deliberately vague and all-encompassing, it is because that is exactly what it is and my guess is this is the keystone of what people have run up against. It would be easy to assume this is just a Nintendo problem, except that Microsoft themselves ran up against this very issue with Windows 8, and having to interpret a deliberately vague ruling into a guideline for mature content; in the case of Windows 8, Microsoft initially decided to interpret this as refusing to sell 18+ content on its new Windows 8 download service. A public outcry ensured that Microsoft eventually found itself a loophole; the ESRB, and basing itself outside the EU rulings that PEGI require of them. As an American company, selling content from America, it can relax behind its own laws rather than translate itself into this mess.

Of course, this brings with it more inherent problems such as the loopholes allowing them to avoid taxation, and corporate tax, stuff which in the UK at least has been making headlines in recent months for all the wrong reasons. Microsoft has already been caught out avoiding paying £159 million in Corporation Tax by using loopholes to get around the UK and European laws. Some of these very loopholes are ones used to essentially bypass some of these PEGI restrictions as well, so we’re talking about having ones cake and eating it here (although can anyone explain that to me? If I have a cake, I want to eat it. It seems only natural, no?).

So why is this an issue now?

Well, that’s a good question and one may consider that with PEGI adoption being a relatively new thing in countries like the UK, that there is a certain ‘grace period’, whereby old systems are forgiven for not abiding strictly to its code as long as there is the suggestion that things can improve and get in line over time. Where Windows 8 and the Nintendo eShop are caught is that this cannot apply to them as their storefronts are new, and therefore there is no grace period that can cover their behinds. They have to comply with the PEGI rules. The problem is in the interpretation of those rules.

When rules are as vague and open to interpretation as the PEGI guidelines, it means that no-one is really quite sure of what to do. Arguably, Nintendo has to comply with its German obligations but of course that is no real excuse considering we can see that the interpretation of the PEGI rules are even more stringent than the famously stringent German laws. Microsoft had to come up with a loophole or two to effectively lift its own restrictions (which wasn’t 100%, remember that ESRB restricts from sale anything rated Adults Only, the highest rating. It’s rare, true, but there may come a time when this issue will crop up again…). Both suggest that there is a correlation towards the PEGI system, and it needs to at the very least be clarified.

Let’s face it. The days this was appropriate may sadly be no more…

If the PEGI System is too vague (which I think it is), then it’s time that the industry sat down and got specific.

For the Digital Age is here, and downloads are going to happen. Moving forwards, the PEGI Code is going to need to adapt to a brave new world that involves adults like myself and probably yourself (I assume you are an adult for that is the polite thing to do) being able to buy content for ourselves as freely as we would on a website, or in a shop. There needs to be a certain amount of Good Faith, by which we assume that the person who bought, registered and is prepared to buy content from a console is inherently an adult with the disposable income for this sort of thing. For most adults would agree that content restrictions on minors is arguably a good thing; although a battle we know the industry is losing as parents cave into buying the latest Call of Duty for their little darlings. But punishing law-abiding adults in the process is perhaps a really bad way of going about it, and most adults have to sleep between the hours of 11pm and 3am anyway! Some people have to work and they can’t automate these purchases.

Solutions? Well, Sky TV has a PIN Service whereby when you want to watch an age-restricted show or movie during the day, that you can input a PIN Code in via the remote to verify you are who you say you are. Again, this is done on the good faith principle that you are an adult who wants to watch something during the day that you might not be able to at night, and personally I think this is a perfectly good system. Is it perfect? Perhaps not, but arguably its a system which is leaps and bounds ahead of the archaic ideals of time-locking content.

It’s often all too easy to just assume Nintendo is in the wrong – in Europe specifically, we’ve been doing that for years. Gamers and the gaming media have always found themselves with an inherent bias against Nintendo but in this case I think it cheapens the real issues at hand; Nintendo are kind of in a bind, their hands tied. Their new system has to comply with the PEGI system, the USK system and arguably they have to take into consideration that using loopholes may make it appear more suspicious than it really intends to be. Not that Nintendo are without fault; arguably, they are in the position where they can challenge and criticise these rules for being so vague, and say that it cannot adhere to them when they can’t be more specific about how it is meant to implement them. For yes, they were meant to be interpreted in individual countries by their own laws, but now PEGI have this potent power at hand it is time they themselves got down to brass tacks and specify the correct European-wide laws and legislations without being so obtuse.

I argued previously that PEGI has a chance but the system is untested and still rather unproven. This will clearly be its first real test in my view; to start being more clear through its own guidelines so that the digital era can move forward without too many restrictions, without trying to stunt the growth of the digital format. If it cannot change itself, or specify details, then it is a system that I feel is doomed to fail in this fast-changing world. Nintendo has to work with the PEGI board and argue that this is an unworkable system at the moment that penalises honest, upstanding adults who may want to buy a game in the morning and let it download during the day. Which you’d have to, considering how slow the Nintendo Wifi downloads are…

It’s time we stopped worrying so much. If parents can’t censor content for their children, it shouldn’t be the industries responsibility to compensate for that lack of care. If you’re buying a £50 game from the Nintendo eShop, good faith may indicate that the person instigating the purchase is an adult, and from there if their child plays it – whose fault is that? The industry can only do so much to warn people. It can’t assume we’re all going to let this happen either. Germany may have its own rules – rightly or wrongly – but it’s an anomaly in a world which is broadly speaking more open-minded than ever before. Adults will expect these digital stores to operate like any normal shop; they log in, they buy something and they download it. It is not an unreasonable expectation.

It’s now down to Nintendo, PEGI and the industry itself to find solutions that help it grow, or find itself unable to survive… so let’s get it right. Because as much fun as people have with bashing Nintendo, it’s a distraction from a problem that will affect everyone looking to adopt this format. Let’s get to fixing this, rather than scoring cheap fanboy points, or we’re all going to be dealing with this headache in future…

  • I’ve added a few more links to back this up. It’s not a perfect piece by a long shot, and I apologise for this, but hey, I’m a diddy blog in the shadow of bigger media sources. They have armies of people at hand to trawl through sources. I have Google. Do correct me if I’m off base, and I will do my best to alter accordingly or write another piece that contradicts this one. Please don’t think however I’m absolving Nintendo of its duties here – that is NOT my intention. I think the lock is totally uncalled for and really silly, and I like everyone else would like to see it relaxed without too many excuses. Enjoy yourselves, take care and have fun otherwise.


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2 thoughts on “Nintendo, Microsoft and PEGI – An Age-Old Concern…

  1. Very insightful post. I never knew the pegi system was so jumbled up or why Nintendo chose to time lock everything despite the presence of parent locks- they're losing money after all. The lesson here is to research before jumping into conclusions.

    1. I aim to inform as well as entertain! 🙂

      Indeed, the lesson is to research, sadly even the usual press outlets themselves fall into this trap of reaching for the traditional beating stick for Nintendo. Some things don't really change; let's hope the PEGI system isn't reflective of the typical nature of the gaming media… 🙂

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