Exemption for online gaming?
CMA’s President, Prof. of Law, Elizabeth Handsley, queries the proposed exemption of online gaming in minimum age legislation for social media.
The passage of the Australian minimum age legislation for social media is clearly cause for celebration for anybody who cares about children’s wellbeing and healthy development. However, as with so many positive developments, the devil is going to be in the detail. We shouldn’t celebrate too hard, too soon.
The legislation allows for the Minister for Communications to make exclusions from the definition of ‘age-restricted social media platform’ – even if a platform or type of service meets the criteria otherwise. This is a good thing, in fact it’s an important part of how the legislation will remain flexible to meet new developments and, crucially, provide an incentive on platforms to lift their game. It will be in their interests to improve their algorithms and data handling practices, for example, if they stand a chance of gaining an exemption as a result.
However, unfortunately, it’s not going to work that way in practice, at least not for all companies. This is because the Commonwealth has already flagged three classes of service to which it proposes to grant an exemption, namely: messaging apps; online gaming services; and services with the primary purpose of supporting the health and education of end-users. We know this because the Explanatory Memorandum – an official legislative document – says so. I’ve read many EMs over the years and I don’t think I’ve ever seen something like this – that is, the Government pre-empting a Minister’s decision-making process under legislation that hasn’t even been passed yet. (In fairness though, it is stipulated that there will be consultation ‘with the aim of ensuring they adequately reflect the Bill’s intent’.)
One could spend a lot of energy guessing how these three candidates for exemption were settled on, and why it was thought necessary to state such intentions in advance – but the important thing is that the Government is not bound by what it said, and it’s not too late to convince it that the planned exemptions would undermine the overall aims of the legislation.
For now, I’ll be focussing on the second proposal to exempt gaming services.
The list of direct and indirect harms that children and young people risk when they use social media is long, and it’s a shame that so many pundits get hung up on one or two such risks. In particular, I hear a lot of people talking as if it were all about age-inappropriate content, or all about grooming by adults who wish to harm the child in real life. Both of these are serious concerns of course, but we need also to remember, among others: bullying, gambling and gambling-like content, promotion of harmful products (such as, you guessed it, gambling), uncontrolled expenditure while online and persuasive design leading to overuse. All of these risks exist for children and young people who engage in online gaming. You can see how a blanket exemption for that kind of platform would kick all those cans down the road, and beyond.
The only explanation I’ve seen for this proposed exemption is in a Substack post by Dr Andrew Leigh MP, Assistant Minister for Competition, Charities, Treasury and Employment. Here is what he said:
In the first instance, the legislation will not apply to messaging apps (which do not have the same risks such as infinite scrolling among content chosen by algorithm), online games (which are regulated under Australia’s National Classification Scheme), and services that primarily function to support the health and education of users (such as Headspace, Kids Helpline, and Google Classroom).
The difference between the three proposed exemptions and their justifications is striking: for health and education services, the justification is more or less built into the description; for messaging apps it at least refers to some key risks that they mitigate. But for games, the justification refers only to an alternative source of regulation. So let’s look at that source, the NCS.
Regular readers of small screen will be well acquainted with all the shortcomings of the NCS: it’s not evidence-based, it doesn’t address the needs of children at different ages and stages of development, most of what it does is only advisory anyway, it’s easily undermined by marketing, etc etc. And that’s all before you even get to the practical problems of imposing self-classification requirements on online providers. But what’s breathtaking about Leigh’s attempted justification is that the NCS only ever aims to cover a tiny corner of the risks associated with online gaming. It’s as if the Government is falling into the trap of thinking the minimum age legislation is all about social media content, and overlooking the risks listed above: bullying (rife in online gaming); grooming (also by no means unknown); in-app purchases (a nightmare for some parents); and over-use (enough of a problem to have prompted the establishment of dedicated clinics).
Dr Leigh, and the Government, are going to have to do better than that.
As noted, there will be consultation on the proposed exemptions, so we’ve got at least a few months to put major pressure on the Government to get it right.
0 Comments