17 de setembro, 2018
[:pt]Nova regulamentação reforça o papel da classificação indicativa para auxiliar pais e responsáveis na avaliação de conteúdos.
Confira o artigo completo de Ana Carolina Cagnoni, Jessica Ferreira e Ludmila Somensi: Novas Regras para a Classificação Indicativa[:en]
Ana Carolina Cagnoni, Jessica Ferreira e Ludmila Somensi
On September 6th, 2018, the new rules for content rating from the Ministry of Justice came into effect, established through Decree n. 1.189/2018, which revoked the previous decree (n. 368/2014).
The new decree reinforces the understanding that the content rating has as its main purpose helping parents and guardians of children or teenagers know ahead of time if certain content is appropriate and recommendable, depending on their children’s age. In the same way, the general guidelines already adopted were maintained, and it is still up to the Ministry of Justice to monitor the various actors, in order to verify the compliance with the new rules.
It is important to highlight that the absence or inadequacy of a work’s content rating before the new rules, as before, may result in the opening of an administrative proceeding, and eventually, legal proceedings in front of different agencies or entities.
With these initial thoughts, we bring you some general considerations below, regarding the Decree in effect. At the end, we identify specific rules for each kind of distribution/exhibition, subject to the new rules.
Which contents must present indicative classification?
The following contents must present their content rating: (A) contents broadcasted on open television or via pay TV; (B) movies exhibited in theater exhibition rooms; (C) movies distributed in the domestic video sector; (D) electronic games and applications; (E) role-playing games known as RPGs; (F) live exhibitions or presentations open to the public (such as circus, movie theaters, shows, expositions, and visual arts exhibitions); (G) radio programs; and (H) programming calls; and (I) video on demand, as defined in the Decree.
What does not need indicative classification?
Works that are released from the obligations of the Decree (A) sports competitions; (B) electoral programs and propaganda; (C) advertisements and advertising in general; and (D) journalistic programs. Live programs may be classified, if they present inadequacies, verified by monitoring or complaints.
What are the existing classifications?
The works to be classified may be identified as “not recommended for children under” 10, 12, 14, 16, and 18 years or be assigned the “open classification”. Each age group will be established, according to the evaluation of its content, considering the thematic criteria “sex and nudity”, “violence”, and “drugs”.
How must the indicative classification be presented?
For each age group, there is a corresponding color that aims to facilitate identification by parents or guardians. Likewise, identifying signs should observe standards of size, color, proportion, and positioning already established by the Ministry of Justice in the current Practical Guide. Additionally, rules regarding the duration of its exhibition, in addition to criteria of clarity, sharpness, and accessibility are also established.
When should the indicative classification be presented?
According to the Decree, radio, TV, and “other means that disclose or contain classifiable products” should indicate the age classification notice, before and during the delivery of the content, according to the distribution/display methods.
How does the process of assigning the content rating work?
There are two ways of rating the works: (i) prior mandatory examination; or (ii) self-classification. In the first case, there is the standard process adopted by the Ministry of Justice, whereby the work will be classified by third parties, linked to the Ministry. In the second form, the owner or legal representative of the work proposes to classify the work in question, which may have to be validated before its broadcasting and which will remain subject to monitoring by the Ministry of Justice.
In the obligatory procedure, the person in charge of the audiovisual work must file the application for classification in the Service Center of the National Secretariat of Justice. The result of the analysis is published in the Brazilian Official Gazette in a minimum period of 30 and a maximum of 120 days, depending on the duration of the work.
The indicative classification attributed to a work by the Ministry of Justice will be the same, regardless the means of distribution used – provided there is no modification in the content analyzed.
What are the consequences of not classifying?
The Department of Promotion of Justice Policies (linked to the Ministry of Justice) may open an administrative proceeding to verify the fact. Once the irregularity is detected, the Department shall notify the competent authority. Those responsible for the work may be punished, in accordance with the Federal Constitution and the Child and Adolescent Statute (ECA), which define clear rules for such situations.
It is important to point out that in regards to conditioned access services (notably pay TV), in view of Law 12.485/11, there is the possibility of interrupting the transmission of a channel that does not comply with the indicative classification rules (Article 11), in addition to sanctions in accordance with Article 36.
In addition to the Department of Promotion of Justice Policies, which performs this activity by sampling, society in general may make complaints to different channels (by sending a notification to the Ministry of Justice, Public Prosecutor’s Office, Judiciary Branch, and National Council of Child and Adolescent Rights, for example).
Classification process. The process continues to be by prior analysis.
Access to content recommended for other ages. The Decree innovated by providing that adolescents between the ages of 16 and 17 may enter theater exhibition rooms to watch movies recommended for those over 18, provided they have expressed authorization from their parents or guardians, which may be written.
In the same form, children and adolescents, who are 10 years old or older, with permission from their parents or guardians, may have access to theater exhibition rooms exhibiting works with content ratings for children under 12, 14, or 16 years of age. Although, children under the age of 10 will only have access to works not appropriate for their age group, if accompanied by parents or guardians.
Broadcast of the work prior to the assignment of the content rating. Content that has not yet received a rating by the Ministry of Justice should present the information “verify the content rating”.
Classification process. The content rating process has not suffered many changes: the transmitter must self-rate it and submit this rating to the Ministry of Justice. The Ministry will publish the assigned rating in 20 days from the protocol, and only after publication will the broadcaster be able to broadcast the content.
Programming Calls. In line with what already happens in the trailers in the cinema, the programming calls should have content rating compatible with the content being displayed at that moment.
Time Restriction. TV broadcasters are no longer obliged to follow the fixed schedule of the exhibition, due to the Federal Supreme Court’s decision in Direct Action of Unconstitutionality No. 2404.
In any case, the Decree recommends observing the hours of exhibition, according to the age groups of protection of children and adolescents according to these terms: A) from 6:00 a.m. to 8:00 p.m.: works classified as open or not recommended for children under 10 years old; B) from 8:00 p.m. to 9:00 p.m.: works classified as not recommended for children under 12 years old or with a lower rating; C) from 9:00 to 10:00 p.m.: works classified as not recommended for children under 14 years or with a lower rating; D) from 10:00 p.m. to 11:00 p.m.: works classified as not recommended for children under 16 or with a lower rating; E) from 11:00 p.m. to 6:00 a.m. – works classified as not recommended for children under 18 years or with a lower rating.
When to present the content rating. The current decree is explicit by stating that TV broadcasters must indicate the content age rating (when it is classifiable), before and during the content’s placement.
Classification process. There was an innovation here in the new Decree: it is up to the station itself to rate the content, without the need to confirm this with the Ministry of Justice later.
When to present the content rating. The current decree is explicit in regards to the need for the radio stations to present the notice of the content age rating before and during the broadcast.
Classification process. It is up to the pay TV service itself to assign a content rating. In this case, it is not necessary to submit the attribution given to the Ministry of Justice at any time. It is noted that the rules for self-rating of content transmitted through pay TV are not very clear. In any case, this self-rating will be subject to the re-classification of the Ministry of Justice if an inaccurate indication is identified, presented through a denunciation or monitoring from the Ministry.
Finally, it is highlighted that if a content has already received a rating from the Ministry of Justice, the indication should be the same.
When to present the content rating. The current decree is explicit by pointing out that the pay TV service must indicate the notice of the content age rating before and during the course of its broadcasting.
Additional Obligations. The provision of a system for blocking channels or content continues to be valid for companies offering this service. In addition, the subscriber of the service should be able to access the information on the content rating at any time, through the programming guide.
Responsible. The responsibility of entity of the chain (the programmers, the packers, the distributors) is not so clear. In this sense, the decree points out that they are responsible for the obligations described above “each one by its acts”.
Under the decree, the rules for assigning a content rating to video on demand services are the same as for pay TV.
The definition of VoD is thus emphasized, like this, “work offered in the form of a catalog, for enjoyment by non-linear diffusion, at a time determined by the final consumer, onerously.”
Therefore, the Decree does not create a difference between the VoD service accessed by the public as an extension of pay TV services (conditioned access service, under the terms of Law 12.485/11) and the service accessed by the public through the internet.
The distinction made, on the other hand, is whether access would be onerous (subject to content rating) or open (not subject to rating).
Classification Process: It is up to the video-on-demand service itself to assign a content rating. In this case, it is not necessary to submit the attribution given to the Ministry of Justice at any time.
Additional Obligations. In theory, such services will have to provide a system for blocking content, such as Pay TV. Similarly, the consumer should be able to access information about the content rating at any time.
Prior analysis, on demand of the interested party. The decree refers to ANCINE’s normative instruction, which understands VoD as “other markets”. In this sense, there is an expressed provision that says “audiovisual works destined to other markets (…) on demand of the interested party, can be classified by prior analysis” (article 43), creating an alternative to the service provider in obtaining the classification.
It should be noted here that ANCINE’s normative instruction indicated in the decree’s text (IN n. 26/2004) was revoked by IN n. 105/2012. In the current IN, “other markets” include Video on Demand, as well as other types of distribution.
Uncertainty. The adopted definition of an application may raise doubts about the need to assign a content rating, since it is the same for “electronic games.” Applications and electronic games are defined as “audiovisual works that allow the user to interact with images sent to a device that displays them, whether pre-installed on the device, sold, or distributed free of charge in Brazil, through download, streaming, or physical media.”
Classification process. Electronic games, apps, and RPG games are subject to prior review. Meaning, it is up to the holder of the game or app to submit a request to the Ministry of Justice, which will give a response within 30 days.
However, there are exceptions in this rating process:
Classification process. Museums and exhibitions (also defined as “visual arts”), as well as other live performances, are not subject to prior indicative classification by the Ministry of Justice. However, the content should be self-classified, following the recommendations contained in the Practical Guide to Indicative Classification, specific to the visual arts.
The referred Practical Guide will be updated within 90 days (extendable for an equal period, if necessary). There, rules will be established to determine information on the degree of incidence of the thematic criteria (sex and nudity, violence, and drugs), as well as the standardization and form of information about the indicative classification of the visual arts.[:]