ESRB re-rating of The Elder Scrolls IV: Oblivion

The ESRB's review process involves the submission, by the game's publisher, of a video which captures all "pertinent content" in the game, where pertinent content is defined as any content that accurately reflects both the "most extreme content of the final product" and "the final product as a whole." That is to say, it must depict the "relative frequency" of said content.[1] As ESRB President Patricia Vance explains it, the ESRB would not just want a "tape of one extreme cut to another," but rather "context for the storyline, the missions, the features and functionality of a game, so that the raters really can get exposed to a pretty reasonable sense of what they'd experience playing the game."[2] The fact that the content of Oblivion under investigation was inaccessible during normal play made no difference in the decision. ESRB policy had been "absolutely clear" since the Hot Coffee controversy, Patricia Vance told a reporter. Publishers were told that they could not leave unfinished or other pertinent content on a disc.[2] If locked-out content was "pertinent to a rating," ESRB policy stated that it needed to be disclosed, and Bethesda had not done so.[3]

Released in March 2006 and reported on game news sites as a curiosity in April of the same year, the Oblivion Topless Mod had been created by a woman calling herself "Maeyanie." Maeyanie created the mod in protest against what she called "government/society/whatever forcing companies to 'protect our innocent population from seeing those evil dirty things 50% of them possess personally anyways.'"[4] The gaming website Joystiq reported on the mod on April 6, 2006: "Modders are already hard at work on bending the code of the recently released PC version of Elder Scrolls IV: Oblivion to their will. Early success: topless mod FTW!"[5] Kotaku, another gaming site, reporting on the mod on April 5, 2006, didn't consider the mod anything new and said, "As usual in the world of computer gaming, one of the first mods released for a popular game allows you to see the breasts of the main character."[6] The content of the mod, wrote commentator Michael Zenke, Editor of Slashdot games, was fairly tame. Without nudity of the lower torso, and without self-consciousness on the part of the nude NPCs, Zenke wrote, the Oblivion Topless Mod was "as erotic as a doctor's visit."[4] Pete Hines had discussed the mod with GameSpot staff before the game was re-rated, saying that he did not consider it a concern. "We can't control and don't condone the actions of anyone who alters the game so that it displays material that may be considered offensive. We haven't received any complaints on the issue from anyone."[3]

During these investigations ESRB staff also found more blood and gore than the review tape had portrayed:

What Bethesda had originally disclosed to us, as an example: In that section of the game, there is a hanging corpse. What they disclosed to us was a hanging corpse in the dark, pretty far away and without much detail. And yet, when you bring a torch up to the hanging corpse in the actual game, you can see that it's very mutilated with lots of blood and bones. That was a very different depiction, far more intense, far more extreme than what had been disclosed to us.[2]

In response to the new content, the ESRB hastily conducted a new review of Oblivion, showing to its reviewers the content originally submitted by Bethesda along with the newly disclosed content. The new review resulted in a Mature rating. The ESRB reported that Bethesda, to correct for the discrepancy, would promptly notify all retailers of the change, issue stickers for retailers and distributors to affix on the product, display the new rating in all following product shipments and marketing, and create a patch for download rendering the topless skin inaccessible.[7] In line with its stated mission of informing consumers regarding the age-suitability of its marked games, the ESRB also released an ESRB Parent Advisory, ensuring that parents would be "immediately notified" of the change.[8]

Following news of the rating change on May 3, 2006, the Interactive Entertainment Merchants Association (IEMA), an organization of game retailers, which had previously eased the adoption of industry-wide ratings enforcement,[9] issued its own statement, lauding its own retailers for the speed with which they reacted to the rating change. The IEMA release further stated that identification was needed to secure the purchase of Mature-rated games at roughly the same rate as was needed for R-rated film admission.[10] In compliance with the ESRB's further demand that Bethesda request retailers "to adhere to their respective store policies not to sell the newly rated M (Mature) game to those under the age of 17,"[7] several retailers had begun to include cash register prompts tied to the game's bar code, instructing the cashier to ask for ID.[11] A report by Gamasutra observed that some retailers—Circuit City specifically—were even pulling the game from their shelves entirely, "presumably until rating modifications can be made."[12]

Following the announcement of the rating change, Bethesda issued their own press release. Bethesda announced that it was their organization, not Take-Two Interactive, that had handled the ratings application, and that they stood behind it. Bethesda would not contest the change, and would promptly seek to implement the ESRB's demands, without demanding a product recall. Nonetheless, Bethesda stated that Oblivion was not typical of Mature rated titles, and did not contain "central themes of violence" common to such titles. The response asserted that Bethesda's submission to the ESRB was "full, accurate, and comprehensive," following the forms and requirements published by the ESRB, and that nothing was withheld. Bethesda stressed that there was no nudity in their game without a modification, that the company "didn't create a game with nudity" and did not intend for nudity to appear in their game. "Bethesda can not control tampering with Oblivion by third parties," the press release concluded.[13]

The British Board of Film Classification (BBFC), the ESRB's counterpart in the United Kingdom, did not change its rating of 15. "Were it the case that the developer themselves had included and failed to disclose certain modifications of content, a recall may be required, but not as a result of a patch that has been placed on the Internet by a third party," a BBFC spokesperson told GamesIndustry.biz reporters on May 4, 2006. Any modifications made after release fall outside the powers of the Video Recordings Act.[14]

In July 2007, the Pan European Game Information (PEGI) announced that it was extending its purview to cover "games playable online via consoles, PCs and mobiles." Websites or online retail games participating in the program would be granted a PEGI Online logo, specifying whether "the particular game or site is under the control of an operator that cares about protecting young people." An article by gaming website Shacknews noted at the time that PEGI's initiative would address the concerns US publishers had with user-created mods for San Andreas and Oblivion: responsibility for such mods would be placed on the participating publishers.[15]