Upcoming new Law on the Protection of Youth in Films and Video Games in Switzerland

1. Introduction

In September 2022, the Federal Act on the Protection of Minors in the Area of Films and Video Games (JSFVG) was passed. In view of recent technological advances, such as online streaming and digital distribution platforms, and in connection with these respective evolving consumption patterns, this law aims to improve the protection of minors from potentially harmful content in films and video games, such as explicit violence, sexual content and intimidating scenes, which could negatively influence their development. Following the law's passage, the consultation period for the accompanying Ordinance on the Protection of Minors in the Area of Film and Video Games (JSFVV) ended in October 2023.

2. Current Regulations

The regulatory landscape for the protection of minors in the film and video game sector is fragmented and inconsistent across Switzerland. And with this comes significant enforcement challenges.

Under Articles 93 and 95 of the Swiss Federal Constitution, the Swiss Federal Government possesses comprehensive legislative authority. However, except for the regulations regarding the protection of youth in the Federal Act on Radio and Television (RTVA), which primarily applies to broadcasting of Swiss radio and television programmes, there had been no national regulations for the protection of youth until the implementation of the JSFVG. As a result, the competence to legislate in this area lay with the cantonal governments, although only Basel-Landschaft, Basel-Stadt, Neuchâtel, Vaud, Valais, and Zurich have enacted specific legislation.

In addition to these cantonal regulations, various industry associations involved in the sale of films and video games – covering both physical media and online platforms – and public film screenings have implemented self-regulatory measures. However, regulatory gaps remain. In areas such as film streaming services and websites and public video games displayed at events such as e-sports tournaments and video game fairs, no legal or self-regulatory measures are currently in place.

3. New Legislation

The JSFVG seeks to fill existing regulatory gaps and introduces comprehensive, nationwide rules to unify the fragmented regulatory landscape and ensure uniform protection of minors across all cantons. It also aims to promote uniform enforcement throughout Switzerland. In addition, the law aims to formalise current self-regulation by embedding it in a legal framework.

a. Scope of Application

The JSFVG is aimed at natural and legal persons who are commercially active in the film and video game industry, as well as at natural and legal persons who provide platform services (Art. 2 para. 1 JSFVG). It should be noted, however, that the JSFVG generally does not apply to providers of money games (art. 2 para. 2 JSFVG). 

Regarding the material scope of application, the JSFVG does not cover films for commercial communication, such as advertising, and editorially produced content, such as political information, education, sport and reports. In addition, Swiss television programmes are covered exclusively by the RTVA.

b. Minimum Requirements of the JSFVG 

The JSFVG establishes specific minimum requirements for the protection of minors from unsuitable content in films and video games:

- Age Labelling and Content Description: All films and video games distributed through commercial activities, whether through audio-visual media, public events or on-demand services, must prominently display age ratings and additional content descriptors. These labels must provide clear guidance on both the minimum age appropriate for viewers or players and the nature of the potentially harmful content contained in the film or video game (art. 6 JSFVG).  

- Age Verification Checks: Providers of audio-visual media or organisers of events must carry out age verification checks when making films and video games accessible. Access to such content must be denied to minors who have not reached the minimum age specified by the age rating (Art. 7 JSFVG). In addition, providers of on-demand services are obliged to take effective measures to prevent minors from accessing unsuitable content. These measures must include – at least – an age verification system and a parental control system (Art. 8 JSFVG).

With the entry into force of the JSFVG, all persons and legal entities involved in consumer-facing activities, such as retailers of audio-visual media, on-demand service providers (like telecommunications companies or streaming platforms), and organisers of public events (including cinema companies and video game fairs) are mandated to apply these youth protection measures.

4. Co-Regulation

With the JSFVG, the Swiss Federal Government has adopted a co-regulation strategy. Under this approach, federal legislation establishes a baseline of minimum requirements in the JSFVG (see section above 3 b.).  The development of further details within the legal framework of these requirements is then entrusted to industry organisations, which are responsible for drafting the "youth protection regulations" (see art. 9 et seq. JSFVG).

For both the film and the video games sectors, a youth protection regulation can be declared legally binding upon request by the Federal Council even for non-members, provided the legal requirements are met (art. 9 et seqq. JSFVG).

Generally, the youth protection regulations are expected to include, among others, at least details on the applicable age classification system, rules for age labelling and age verification checks, as well as guidelines for content description. Additionally, these regulations must clearly define the roles of the parties involved in the implementation. The regulations are also required to outline the allocation of costs associated with their development and enforcement, establish the procedures for monitoring compliance, and define the measures or sanctions to be imposed on members who do not comply with the regulations (Art. 11 JSFVG).

The industry organisations will be established after the JSFVG and the JSFVV have entered into force. Therefore, only limited information is available at the moment, but the Federal Social Insurance Office indicated that, in general, all stakeholders will likely have an independent right to membership in the relevant industry organisation. While membership in an existing industry association (i.e. "Branchenverband") is not a prerequisite for joining the industry organisation, the role of these industry associations is likely to be significant in the establishment of the industry organisation as suggested by the Federal Social Insurance Office.

5. Enforcement

Under the co-regulation principle, the industry organisations are primarily responsible for monitoring compliance with their youth protection regulations and have the authority to impose penalties on members who breach these rules under private law (art. 25 JSFVG).

Additionally, monitoring the adherence to the minimal requirements of the JSFVG (see section 3 b.) also lies in the competence of the cantons or the Federal Social Insurance Office, depending on where the films and video games are made available. Specifically, each canton is responsible for supervising compliance with the minimum requirements of the JSFGV by providers of audio-visual media and organisers, who make film or video games available on their territory (art. 26 JSFVG). Meanwhile, the Federal Social Insurance Office is responsible for monitoring compliance with specific minimal requirements by providers of audio-visual media who make films or video games accessible (i) via the internet, (ii) via on-demand services, or (iii) via platform services (art. 27 JSFVG). In the event of non-compliance with the minimum requirements, criminal sanctions of a fine up to CHF 40,000 can be imposed on those responsible members (art. 32 JSFVG). 

It must be noted that if a fine is imposed by the Federal Social Insurance Office or the cantons, industry organisations have the option to waive their own penalties, provided this possibility is stipulated in the youth protection regulations.

6. Implementation and outlook

The entry into force of the JSFVG and the JSFVV, originally scheduled for 1 July 2024, may be delayed, according to the Federal Social Insurance Office. As soon as the JSFVG comes into force, all cantons vested with legislative authority must revise their cantonal laws within a two-year timeframe (art. 37 JSFVG). This mandate necessitates that each canton either introduces new implementation measures or amends existing ones.

Consequently, the JSFVG and the JSFVV aim to establish comprehensive, nationwide standards to protect minors from potentially harmful content in the - in this regard - currently widely unregulated film and video game industry. The entry into force of the JSFVG and the JSFVV are expected to have significant practical implications. Industry stakeholders should closely monitor these developments, as they will be required to implement the youth protection measures once the JSFVG comes into force. Additionally, by joining an industry organisation, they have the opportunity to take part in shaping the specifics of these measures in Switzerland.