Attorney Shao Shiwei | A Game Developer Plans to Release an Adult-Oriented Game: How to Navigate the Boundaries of Obscenity to Avoid Criminal Liability?

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Special Disclaimer: This article is an original work by Attorney Shao Shiwei. It reflects only the personal views of the author and does not constitute legal consultation or legal advice on any specific matter. For article reprints, legal consultations, or business exchanges, please add: sswls66 Introduction: As indicated in the title. This is a question posed to Attorney Shao a few days ago by a game developer, referred to here as Little A. Due to the difficulties in obtaining game license numbers in China, their team is preparing to launch the game on Steam. Therefore, they sought legal advice on the key legal issues to consider when expanding games overseas. The initial discussion proceeded smoothly, covering topics such as copyright protection for games, personal information security protection, game rating systems, and the developer team’s consideration of transitioning to block-based operations.

Special Notice: This article is an original work by Attorney Shao Shiwei. It reflects solely the author’s personal views and does not constitute legal advice or a legal opinion on any specific matter. For article reprints, legal consultations, or business exchanges, please add: sswls66

Introduction:

As indicated in the title. This question was raised a few days ago by a game developer, referred to here as “A,” who consulted Attorney Shao.

Due to the difficulties in obtaining game publication licenses in China, their team planned to list the game on Steam and therefore sought legal advice on the key legal issues to consider when expanding games overseas. The initial discussion proceeded smoothly, covering topics such as copyright protection for games, protection of personal information, game rating systems, and the development team’s consideration of transitioning to blockchain-based games.

and other related issues.

However, A suddenly changed the subject, asking, “Attorney Shao, if we develop an adult-oriented game (commonly known as a ‘H-game’), how should we determine the acceptable level of explicit content? For instance, if my game includes a scene of a woman bathing, at what point of undress would the character be deemed to involve pornographic content? Alternatively, could we produce a game with suggestive but not explicitly pornographic content, and at what threshold would such ‘borderline’ content be considered unlawful?”

unlawful?

Upon hearing this, my internal reaction was as depicted in the accompanying image.

Although A’s team’s game did not contain any pornographic elements, the fact that such a question was raised may indicate future plans in that direction. Does going global mean developers can act without restraint? A quick online search suggests that many others are grappling with similar concerns. Therefore, this article will discuss this topic.

(Key point: harboring a long-standing aspiration to develop adult-oriented games)

Author: Attorney Shao Shiwei

01 Regardless of whether a game is distributed overseas, Chinese judicial authorities retain criminal jurisdiction

Key Takeaway: This is the first thing game developers need to know.

Under the Criminal Law of the People’s Republic of China, criminal jurisdiction is governed by the principles of territorial jurisdiction and personal jurisdiction. Territorial jurisdiction means that China has jurisdiction if either the criminal act or its consequences occur within Chinese territory; personal jurisdiction means that China also has jurisdiction over crimes committed abroad by Chinese nationals. Therefore, as long

as the offender is a Chinese national, or the criminal act or its consequences occur within China, Chinese authorities have jurisdiction.

Relevant criminal offenses under the Criminal Law include: the crime of disseminating obscene materials; the crime of producing, reproducing, publishing, selling, or disseminating obscene materials for profit; and the crime of organizing obscene performances, among others.

If the level of sexually explicit content in a game does not reach the threshold for criminal liability, administrative penalties may be imposed under regulations such as the Interim Provisions on the Administration of Internet Culture and the Provisions on the Administration of Online Publishing Services. If a game contains content that promotes obscenity, pornography, gambling, violence, or incites criminal activity, or harms social public morality or fine traditional Chinese culture, administrative authorities may impose

administrative penalties such as fines, suspension of business for rectification, revocation of licenses, or website shutdowns.However, games operated overseas are not subject to Chinese administrative regulations.Nevertheless, they must still comply with applicable local laws and regulations, as local competent authorities retain jurisdiction.

02 How should the boundaries of erotic content be determined?

1. What is the difference between “obscenity” and “pornography”?

It is essential to distinguish between two concepts: “obscenity” and “pornography.” The legal consequences associated with each classification differ significantly.

If content is classified as pornographic, even profits exceeding one million RMB do not give rise to criminal liability. However, if it is classified as obscene, the maximum penalty can be life imprisonment.Therefore, what constitutes “obscene materials”? What constitutes “pornographic materials”?”,

Based on the provisions below, it can be concluded that pornographic content does not necessarily constitute obscene materials, whereas obscene materials necessarily contain pornographic content.

Article 367 of the Criminal Law

Paragraph 1: The term “obscene materials” as used in this Law refers to books, periodicals, films, video tapes, audio tapes, pictures, and other obscene materials that specifically depict sexual acts or explicitly promote pornography in a lewd manner;

Paragraph 3: Literary and artistic works with artistic value that contain pornographic content shall not be deemed obscene materials.

Based on the provisions below, it can be concluded that if the overall content includes any of the items listed in (1) through (7) below and lacks artistic or scientific value, it constitutes obscene materials; if the overall content is not obscene (i.e., only partially obscene) and lacks artistic or scientific value, it constitutes pornographic materials.

Interim Provisions on the Determination of Obscene and Pornographic Publications

Article 2: Obscene publications refer to publications that, as a whole, promote lewd conduct, contain any of the following content, arouse people’s sexual desires, are sufficient to cause ordinary people to become corrupt and depraved, and lack artistic or scientific value:

(1) Lewd and specific descriptions of sexual acts, sexual intercourse, and the associated psychological sensations;

(2) Open promotion of pornographic and licentious images;

(3) Lewd description or instruction of sexual techniques;

(4) Specific descriptions of the means, processes, or details of incest, rape, or other sexual crimes, sufficient to induce criminal conduct;

(5) Specific depictions of sexual acts involving minors;

(6) Obscene and specific depictions of homosexual sexual acts or other paraphilic behaviors, or specific depictions of violence, abuse, or humiliation associated with paraphilia;

(7) Other obscene depictions of sexual acts that are intolerable to the ordinary person.

Article 3: Pornographic publications refer to publications that are not obscene as a whole, but contain content specified in Items (1) through (7) of Article 2 in part, which are harmful to the physical and mental health of the ordinary person, particularly minors, and lack artistic or scientific value.

How can the boundaries be precisely delineated? Regrettably, based on the current legal provisions cited above, it is not possible to answer the question posed by Consultant A at the beginning of this article:How many layers of clothing must a woman remove for the content to be considered pornographic, and how many more for it to be deemed obscene?If one truly wishes to know, the only option is to first develop the game and have officials from the public security organs or the press and publication authorities conduct an appraisal.

You will receive a formal Appraisal Certificate for Obscene Materials,free of charge,but such an earnest attempt is strongly discouraged, as by that time you would already be in detention.

Although precise measurement is impossible, the determination is not difficult; reflecting on how an ordinary person would perceive and understand the content is sufficient. This is because the appraisal standards applied by reviewers are likewise based on the provisions set forth in Items (1) through (7) above.

2. Is it permissible to merely skirt the edge?

Some game developers may be unwilling to accept this outcome and may refuse to cease such activities.Relying on their own understanding of the “compliance threshold,” they engage in borderline conduct.However, under applicable legal provisions, the standard for obscene materials is not based on whether there is exposure of nipples or genitalia. Content that is “borderline” or involves “soft-core pornography” still carries a certain degree of risk of being characterized as “obscene materials” within the meaning of the Criminal Law.

Decision of the Standing Committee of the National People’s Congress on Punishing Criminals Who Smuggle, Produce, Sell, or Disseminate Obscene Materials (2009 Amendment)

Article 8: For the purposes of this Decision, “obscene materials” refer to books, periodicals, films, video tapes, audio tapes, pictures, and other obscene materials that specifically depict sexual acts or explicitly promote pornography in a lewd manner.

03 If you are arrested for developing an erotic game, how can you mount a defense?

The entire text of this article is essential. We now turn to the most critical stage: mounting a defense!

1. There is no explicit legal provision characterizing online games as “obscene materials.”

Under existing legal provisions, online games arenot included within the concept of obscene materials.Furthermore, in current judicial practice, therehave been no cases in which online games have been directly characterized as obscene materials.。

Pursuant to Article 1, Paragraph 2 of Judicial Interpretation [2010] No. 3, obscene materials specifically refer to: video files such as films, performances, and animations; audio files; electronic publications, images, and articles; and electronic information. Pursuant to Article 9 of Judicial Interpretation [2004] No. 11,the Criminal LawArticle 367, Paragraph 1the “other obscene materials” stipulated therein include

obscene video files, audio files, electronic publications, images, articles, short messages, and other electronic information on the internet and mobile communication terminals, as well as voice information on voice information services, that specifically depict sexual acts or explicitly promote pornography.

2. Pornographic Content Should Not Be “Artificially Segmented”

From the perspective of both statutory provisions and current judicial practice, an online game as a whole cannot be appraised as an obscene material. However, pornographic content within games remains subject to regulation under the Criminal Law. This is because certain portions of the game content may be extracted as evidentiary materials, such as specific character designs, certain scenarios, and game CGs (in other words,the game merely serves as a carrier form of obscene materials within the meaning of the Criminal Law

merely the form of the medium carrying obscene materials). However, other scenarios and visuals should not be deemed pornographic content.

Therefore, an online game cannot be directly defined as an obscene material. Consequently, if game content is determined to be pornographic and constitutes a criminal offense, judicial authorities must extract the pornographic content as evidentiary materials and conduct an appraisal to serve as evidence in the case. If the extracted materials pertain to the same scenario, the number of obscene videos should reasonably be counted as a single video file; otherwise, artificially splitting the content of the same scenario into dozens or even hundreds of files could cause the perpetrator’s sentence to increase from less than three years to more than ten years, which is utterly absurd.

Splitting the content of a single scenario into dozens or even hundreds of parts could increase the perpetrator’s prison sentence from under three years to over ten years, which is utterly absurd.

3. Determination of Illegal Gains

As stated above, the review of pornographic content should be “segmented.” Therefore, profits generated from scenarios and visual content other than “obscene” material should not be deemed as the actor’s illegal gains. In some games, obscene content may constitute paid in-game content that requires players to unlock through in-game reward mechanisms or make additional payments to view.

In such cases, it is critically important to distinguish the actor’s profits derived from obscene scenes versus non-obscene scenes, as this distinction directly affects the specific term of imprisonment. For example, for the crime of profiting from the dissemination of obscene materials, an amount of illegal gains reaching RMB 10,000 may result in a sentence of fixed-term imprisonment of not more than three years.

The above points outline only the general direction of defense strategies. In practice, effective defensecan only be achieved by tailoring the approach to the specifics of each case and integrating the evidence on record.。

Final Remarks:

For game publishers, whether distributing domestically or expanding overseas, it is imperative to remain disciplined and consistently uphold the Core Socialist Values, regardless of jurisdiction.

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