Postal 2: Swedish Game Distributor Faces Jury

By Per Strömbäck

On December 12, 2006, the Helsingborgs Tingsrätt court tried the first ever case concerning a video game in Sweden. The prosecutor was Göran Lambertz, Swedish Justice Chancellor (Sweden’s highest legal authority).  The defendant was Johan Berndtsson, country manager for games distributor KE Media and the charges were 22 accounts of Illegal Depiction of Violence, which is a crime punishable with up to one year’s imprisonment under the Swedish Freedom of Expression Act.

   Originally designed to restrict violence in movies, this law dates back to 1911. All cinema films are pre-examined by the Swedish Board of Film Classification, a government authority which assigns age restrictions and has the authority to edit out violent content but has not exercised that authority since 1995 (Martin Scorsese’s Casino). The key word in the law is brutalising. The board’s censors are supposed to edit out violent content that can have a brutalising effect.  This term is a topic of substantial debate, its critics claiming it’s too vague and that it is unclear what is the victim of the brutalisation: the viewer, society, the film media, or all of the above? Also, there is no scientific evidence of brutalising effects from media violence. Despite intensive criticism, also by the classification board’s staff, this law has remained in place for almost a century. In August 2007, the Board’s executive director Gunnel Arrbäck resigned after 27 years in office, in protest against the inability of the legislators to do away with the archaic law.

   The object of the Justice Chancellor’s case against Berndtsson was Running with Scissor’s controversial Postal 2, or more precisely two hours of in-game video prepared by the Chancellor’s office containing 21 accounts of potentially illegal violence depictions. The 22nd account was the entire video.

   The day in court was preceded by almost two years of preliminary negotiations to determine the actual charge and whether Berndtsson could be held accountable or whether the actual crime was committed by his superiors in Denmark (KE Media is Danish-owned) who took the decision to release Postal 2.

What inspired the Justice Chancellor to press charges against a video game is of course a matter of speculation, but an educated guess would suggest that the 2004 documentary Dödligt spel (Deadly Games) which aired on Sweden’s largest private TV Network in March 2004 might have played a part. Dödligt spel was financed by non-governmental organisation Fair Play, which according to its website aims to “inform about negative aspects of video games and video game playing”, and it is an ambitious journey over three continents to find proof to support the claim that gamers act out violent video games in real life, predictably using the Columbine tragedy as an example and interviewing experts such as US Lt Col Dave Grossman and Japanese neurologist Dr Kawashima (who is better known for the Brain Age-series for Nintendo DS). The documentary generated a  furious media debate includling  calls for a ban on video games.This debate is still not quite over. Lambertz presented his case two months after Dödligt spel aired.

   Freedom of Expression cases require jury trials, which is otherwise rare in the Swedish legal system (rulings in other kinds of cases are typically decided by a committee of one judge and three lay assessors appointed by the political parties). The trial took place in a district court in Helsingborg in southern Sweden and the Justice Chancellor was represented by the local vice chief prosecutor Göran Olsson.

   The defense rested on three major arguments: that the video itself is unacceptable as evidence, that the violence in the video is non-controversial compared to what is accepted in movies, and that a conviction would be a violation of European Community law. The defense attorney was Krister Azelius at Vinge law firm. Azelius is one of Helsingborg’s most recognised lawyers and a local celebrity for his work as secretary of the board at the city’s football club Helsingborgs IF.

   Azelius claimed that the in-game footage prepared by the JC’s office should not be accepted as evidence because it was produced using cheat codes which are not made available with purchase of the game. Therefore it was not representative of the product that Berndtsson had put on the market and the case should be dismissed. The video begins with five minutes of footage where the player enters cheat codes into a dialogue box in the game, so it is obvious that cheats were used. Whether  this was reason enough to dismiss the charge was for the jury to decide.

   Azelius further argued that the violence accepted in movies was significantly more controversial than what appears in Postal 2. The Freedom of Expression Act does not talk about films or games separately, but instead uses the term technical recording to cover all audiovisual media. It also states that the Swedish Board of Film Classification sets the norm for violent content. The highest age rating for movies in Sweden is fifteen years. So Azelius showed the jury scenes from films that had been approved for fifteen year-olds by the government. The reel included material from films such as Hostel 2, The Saw, Irrèversible, Kill Bill and other works with explicit and violent content. The crude 3D graphics in the game video were pale in comparison. Azelius also pointed out that was rated PEGI 18+, which means that the game was labelled for an  older audience the movies. Since the film board sets the norm for technical recordings, Azelius argued that films and games should be considered equal in terms of violent content and the charge be dismissed since the content of Postal 2 was well within that norm.

   The third pillar of defense was more legally complex and technical. The European Single Market-agreement (article 28 in the European Community Treaty) states that a product that is legal in one country in the EU is by default legal in all other member states. A national government that bans a product in is therefore in violation of the Single Market-agreement. However, this only applies to harmonised markets (i. e. where there is an EU legal framework in place), so the defense had to prove that games are actually harmonised with the EU. Enter PEGI – the Pan-European Game Information system operated by the Interactive Software Federation Europe (ISFE) and endorsed by governments throughout Europe (with the exception of Germany where the national government operates its own age rating system for games). This writer – who is a member of the ISFE board – was therefore called as a witness to testify on the structure of PEGI and how the EU Commission and national governments endorse and influence the system. Azelius wanted to prove that PEGI in fact constitutes an EU harmonisation and let this writer speak at length on the topic asking several questions. The prosecutor had only one question: can PEGI prevent a title from being released? The answer is no. (Note: Introducing a ban has been discussed many times in the PEGI Advisory Board in which the government representatives hold a majority. Every time the conclusion reached has been that it is better to have an 18+-rating for the most controversial titles than have non-rated products enter the market.[i] )

   However, there is an exception to Article 28. Article 30 in the EC-treaty allows member states to ban products that are a public health threat. As an example, this was used to ban British and Irish beef during the outbreak of Creuzfeld-Jacob’s disease (Mad Cow) in the nineties. Azelius expected the Justice Chancellor to try to use the public health exception to ban Postal 2, so he needed to prove that games are in deed no threat to the public health. (Technically, the prosecutor would have to prove that games do poise a threat to the public health, but the defense was not convinced that the jury would see this finer aspect.) The defense called Jonas Linderoth, an Education PhD from Gothenburg University who specialises in childrens’ use of interactive media. He testified to whether games are harmful to the individual and/or society and based most of his reasoning on a report from the Swedish Public Health Authority which is an overview of international effects research on video game players where there are qualifiying criteria like randomised, controlled experiments (test subjects are randomly chosen and control groups are used to confirm results) and prospective longitudinal studies (multiple measure points over time). The report concluded that there is “no support for a link between video game playing and aggressive thoughts, feelings or behaviour despite that these outcomes are well studied.”[ii] Dr Linderoth told the jury that had there been a link, it would have been found in these experiments. Put plainly: science says there is no connection between violent games and real life violence.

Indeed, the prosecutor did try  to use the public health exception, but did not call any witness to support it, and only quoted a report by two Danish graduate students on topic of gameplay effects which says that there are some studies that show that games are indeed harmful. However, the next paragraph – which the prosecutor omitted – of the Danish report says that these studies have been severely criticised by the academic community for lacking in stringent scientific methodology. Of course, Azelius did not miss the opportunity to read the full text to the jury.

   The trial then moved on to closing arguments, where the prosecutor urged the jury to convict Berndtsson and ban Postal 2 from the market because of the severity of the violence in the game. He drew a parallel to Sam Peckinpah’s movies in the Seventies, saying that however violent they also had an important message. In Postal 2, he argued, there is no message, only violence. He also presented a news clipping about the recent Emsdetten-tragedy (where a German 18 year-old shot and injured several other students before killing himself), saying that this deed was obviously triggered by violent video games.

   Azelius spoke at length, urging the jury consider the importance of freedom of expression and handling their responsibility with great care. He reminded them of the apparent difference between the content in the game video and the film scenes that had been approved for fifteen year-olds. He stressed that Postal 2 was approved by other EU member states and that it would be against EC law to ban it in Sweden. And he repeated what Dr Linderoth had testified about violent games not causing any real-life aggression. He concluded that we may not like Postal 2, but it is a matter of taste and bad taste is no crime.

   With that the jury went to deliberation. Outside the courtroom was a small group of reporters who interviewed Olsson, Berndtsson, and Azelius. The case against Postal 2 appeared regularly in the press during the two years leading up to the trial, but the actual court hearing was mostly covered by local and regional news media, appearing nationally only as news wires.

   Forty-five minutes later the jury delivered its verdict.

Johan Berndtsson was acquitted of all charges.