Federal Department for Media Harmful to Young Persons

Federal Department for Media Harmful to Young Persons logo

The Federal Department for Media Harmful to Young Persons (German: ''Bundesprüfstelle für jugendgefährdende Medien'' or BPjM) is an upper-level German federal agency subordinate to the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth. It is responsible for examining and censoring media works allegedly harmful to young people. These works are entered onto an official list – a process known as Indizierung (indexing) in German. The decision to index a work has a variety of legal implications.

Legal basis

The basic rights of freedom of expression and artistic freedom in Article 5 of the German Grundgesetz are not guaranteed without limits. Along with the "provisions of general laws and "provisions [...] in the right of personal honor", "provisions for the protection of young persons" may restrict freedom of expression (Article 5 Paragraph 2).[1]

The Jugendschutzgesetz (Youth Protection Law), which came into effect in April 2003, is one such provision. It superseded the Gesetz über die Verbreitung jugendgefährdender Schriften (Law on the Distribution of Writings Harmful to Young Persons) as the legal basis for the restriction of freedom of expression when applied to physical media (printed works, videos, CD-ROMs etc.).

The Jugendmedienschutz-Staatsvertrag (State Treaty on Media Protection of Young Persons) between the different Länder came into effect on the same day as the Jugendschutzgesetz and regulates the distribution of broadcasts and virtual media. It also provides a legal basis for the actions of the BPjM.

History

The original Bundesprüfstelle für jugendgefährdende Schriften (Federal Department for Writings Harmful to Young Persons) was established on May 18, 1954, after the Gesetz über die Verbreitung jugendgefährdender Schriften was adopted on June 9, 1953. The presiding officers of the Bundesprüfstelle have been:

The first session deciding upon applications requesting the indexing of materials took place on July 9, 1954. The first two works indexed by the BPjS were Tarzan comics. The rationale for this was that they would affect young people in a "nerve-inflaming and brutalizing way" and "transport them into an unreal world of lies". Such works were supposedly "the result of a degenerate imagination".

In 1978 the number and type of institutions which could petition for a work to be indexed was widened considerably. Since then, not only the higher authorities with responsibility for young people in the Länder (states), but also the youth welfare offices of individual Kreise (districts) have been authorized to submit applications. The number of applications for indexing has multiplied significantly as a result of this.

Following the Erfurt massacre (a Columbine-like shooting at a school in Erfurt), the Jugendschutzgesetz was passed in June 2002, replacing the Gesetz über die Verbreitung jugendgefährdender Schriften and the Gesetz zum Schutz der Jugend in der Öffentlichkeit (Law for Protection of Young Persons in Public Places). It came into effect on April 1, 2003.

The change in the law clarified the area over which the Bundesprüfstelle has authority. New forms of media such as websites and computer software were within its jurisdiction. As a result of these new powers the organisation's name was changed to the current Bundesprüfstelle für jugendgefährdende Medien. As previously, an examination order can result from the application of a state youth protection agency or from the request of a non-governmental youth organisation.

For video games, the new law also made the ratings of the USK compulsory. Games that have been given a rating by this organisation can no longer be put on the index.

Role and responsibilities

The BPjM has the following responsibilities:

§ 18 Paragraph 1 JuSchG (Youth Protection Law) defines jugendgefährdend as that which is harmful "to the development of children or young people or to their education as autonomous and socially-compatible individuals". Media that are "immoral, brutalizing, or which provoke violence, crime or racial hatred" are named as examples of this.

Under § 15 Paragraph 2 JSchG, certain types of content are subject to restricted distribution by virtue of the law on account of their obvious harm to young people, without the need to add them to the Index. These include:

However, as often it may not be immediately apparent whether a particular work has content as described in § 15, 2 JSchG, the Bundesprüfstelle is able to index such media for the purpose of clarification. The Bundesprüfstelle has consequently indexed works which deny the Holocaust, which would be indictable as Volksverhetzung or as bringing the memory of the deceased into disrepute, when the public prosecutor's office was not able to proceed further at that point.

Upon the application (Antrag) of a youth welfare office or at the request of an accredited non-governmental youth organisation, the BPjM examines whether a written work, film, computer game or other media product has content they consider harmful to young persons. If an application is made by a government body, the BPjM must always examine the media work. If a non-governmental body makes a request, the BPjM can decide itself if it needs to take action. No organization or individual other than the prescribed government bodies may make an Antrag. In practice applications are normally made by the youth welfare offices.

The indexing process

The authors, producers or rightsholders of the work in question are notified of the application or request for indexing. They have the right to a legal hearing.

The Bundesprüfstelle may not continue with the indexing process, if one of the following requirements if met:

The decision-making panel

The decision whether a media work is harmful to young people is taken by the Zwölfer-Gremium (Panel of Twelve) or the Dreier-Gremium (Panel of Three). On these panels, youth protection agencies, the arts and business are represented by honorary assessors. The members of the panel act independently and not as directed by the interests they represent.

The Zwölfer-Gremium consists of:

The hearing, which representatives of the work in question can take part in, is oral and not open to the public. However, the presiding officer can allow third parties to attend the hearing. As in the courts, transcripts of the hearing are not published, but the written reasons for a decision can also be requested by those not involved in the proceedings. The names of the assessors are disclosed to those involved in the proceedings, and are also listed in both the transcript and the decision to index. If those not involved in the proceedings request the decision to index, any personal data (of assessors and also of any companies or lawyers involved) is removed.

The decision to index requires a majority of two thirds of the votes. If this majority is not reached, the indexing is rejected. In the event that the Bundesprüfstelle holds a meeting with the legal quorum of nine people, a qualified majority of seven must vote to index or the application will be rejected.

The Dreier-Gremium has jurisdiction only in cases where harm to young people is obvious. At least one assessor on the panel must be a representative of art, literature, the book trade and publishing, or the video or telecommunications industry. An application for indexing will be accepted only if the panel votes unanimously.

The person responsible for an indexed work can file suit against the decision to index in an administrative court.

The List of Media Harmful to Young People

The List of Media Harmful to Young People (colloquially known as the Index) is published only for physical media (those whose content is stored as an object rather than virtually). The list of virtual media is not published so as to avoid advertising these works. It is technically illegal for third parties to publish the list, and the only sanctioned lists can be found in the official publications of the BPjM. The lists are published in BPjM-Aktuell, a quarterly journal which costs €11 per issue. Nonetheless, there are numerous lists available on the Internet that reveal which media has been indexed or confiscated.

While these online lists are technically illegal, their right to exist and how the publication has yet been untested in court, as only a small number of them have shut down voluntarily after receiving warnings from a number of non-governmental youth protection associations. As such, it is as yet unknown whether a ban on the publication of these lists could be a violation of the Youth Protection Act. If it is not, then such a ban would not be permitted under article 5 of the German constitution.

Under the new Jugendschutzgesetz, a decision to index remains valid for 25 years. After that, the work must be removed from the Index. If the BPjM is of the opinion that there is still a risk of harm to young people, it must begin the legal proceedings afresh. After a popular movie has been removed from the index, there is usually a label that has it re-rated by the FSK (which does not rate indexed movies). Most previously indexed movies get an FSK 16 rating. As commercial interest in old video games is usually very low (see abandonware), no one wants to pay for a re-rating by the USK.

In the event that the material or legal situation changes, the rightsholders for an indexed work can apply for the proceedings to be re-opened under Article 51 of the Verwaltungsverfahrengesetz (the Administrative Proceedings Law) with the aim of removing the work from the list.

The List in detail

The List is subdivided into various sublists, and these in turn are subdivided into various indexes:

Sublist Index
A, B, E Under the Jugendschutzgesetz Article 18 Para 2 (1) & (2)

Sublist A: Works that are harmful to young people
Sublist B: Works whose distribution is prohibited under the Strafgesetzbuch (German Criminal Code) (in the opinion of the BPjM)
Sublist E: Entries prior to April 1, 2003

1Movies (2858 titles)
2Games (389 titles)
3Printed works (869 titles)
4Audio recordings (368 titles)
C, D Under the Jugendschutzgesetz Article 18 Para 2 (3) & (4) (unpublished)

Sublist C: All indexed virtual works harmful to young people whose distribution is prohibited under Article 4 of the Jugendmedienschutz-Staatsvertrag
Sublist D: All indexed virtual works, which potentially have content whose distribution is prohibited under the Strafgesetzbuch.

5Virtual works (unpublished) (915 titles Correct as of January 2005)
Special digest Confiscations, where these have been notified to the BPjM
6Confiscations under Articles 86a, 130 & 130a of the Strafgesetzbuch (110 titles)
7Confiscations under Article 131 of the Strafgesetzbuch (240 titles)
8Confiscations under Article 184 III (or, since April 1, 2004, Articles 184a & 184b) of the Strafgesetzbuch (182 titles)
9Confiscations under Articles 185 & 187 of the Strafgesetzbuch (2 titles)
Special digest Planned indexations/current indexations (physical works)
11Planned indexations of physical works
10Current indexations of physical works (works indexed in the same month that the current issue of BPjM-Aktuell was released)

Figures are from 2004.

Legal consequences

The legal consequences of a work being listed on the Index are enumerated in § 15 Jugendschutzgesetz (law for the protection of minors):

  1. It must not be sold, provided or otherwise made accessible to minors.
  2. It must not be displayed where it can be seen by minors. This would, for example, include playing an indexed game in the presence of minors (e.g. streaming gameplay over the internet).
  3. It must be sold within a shop in an area only accessible only to adults ("under the counter"). Basically selling indexed titles per mail order is illegal, however it is permissible if the package may be handed over only to a specified adult person, who has to present ID.
  4. It must not be rented out, except in a shop inaccessible to minors.
  5. It must not be imported by mail order. In this case an adult buyer (importer) is not subject to penalty, if he himself has no intentions of further dissemination it to others or minors.
  6. It must not be advertised or announced in a place where the announcement or advertisement could be seen by minors.
  7. If it is for one of the above six causes, production, acquiring, and holding in store are subject to penalty, too.

Indexed content of lists A and C can, however, be advertised and sold to adults on the internet, if it is technically ensured that minors do not have access to the content (closed user groups). Media on lists B and D may be disseminated under the aforementioned conditions, however they not to be distributed through broadcasting system, including the internet.

It is a matter of dispute whether criticism or discussion of indexed works is allowed in works that are accessible to young people. Public prosecutors have not been unanimous in this regard, but publishers tend to err on the side of safety: In the German version of Marc Saltzman's Game Design: Secret of the Sages, for example, the titles of indexed games were replaced by random strings matching only first letter and length.

Pornographic content on the internet is legal only if technical measures prohibit minors from getting access to the object (AVS = Age Verification System or Adult-Check-System).[2]

Criticism

The BPjM has drawn criticism for de facto censorship, paternalism, and restricting the freedom of speech and of the press on the following grounds:

The counter-argument states that the advertising ban on indexed works is not the aim of the decision to index, but its legal consequence. The BPjM sees it as its responsibility to use the decision to index works harmful to young people in order to raise awareness that there is content which is unsuitable and damaging for children and minors. This should consequently encourage public debate about the depiction of violence in the media or about other matters of concern.

However, in practice this debate seldom takes place. One reason for this is the legal uncertainty as to whether a critical discussion of an indexed work is legally permissible or whether it infringes the advertising ban. This can be traced back to the differing positions of various public prosecutor's offices, and a clarification of the legal position by law enforcement agencies would consequently be helpful.

The critique that the BPjM is an organisation unique to Germany ignores the fact that other western countries also have laws and mechanisms, albeit different in scope and practice, to prevent, for example, the sale of pornography to minors, holocaust denial, or racist literature and hate speech.

The nature of the BPjM's judgements has altered over the decades and been modified in accordance with changing public opinion. Decisions to index from the 1950s and 1960s, and indeed those from the early days of computer and video games, are unlikely to be made today. Regardless, many of these decisions are still in effect today. Consequently, the time period of 25 years that media is retained on the index is of high controversy.

In recent times, it has become more prevalent for digital games on PC to be bought as license keys, while an online-activation has to be undertaken to use the license. Many publishers deem it necessary to restrict activation out of Germany for certain games. This leaves German adults without the option to import said games, while consoles do not have those kind of restrictions. So far, importing console games has not led to an incrimination of any publisher. While indexing keeps a larger portion of the German population (especially parents) in ignorance over indexed media, due to the internet it is easier than ever for minors to inform themselves about new media which might be indexed in Germany and thus be of more interest to them. The indexing process is thus often labelled as outdated, useless for parents and the society as a whole. Since it seems to only just provide a thin veil of false security for youth protection, it leeds to a disproportionate factual restriction of adults' freedom of information.

Other restriction mechanisms

Indexing is not the only mechanism in use in Germany by which broader circulation of certain media works is prevented. Works may also receive a confiscation order by a court when certain articles of the Strafgesetzbuch apply to them, for example, glorification of violence or denial of the Holocaust. Confiscation results in a nationwide ban on its sale even to adults; the mere possession of such material remains legal (with the exception of child pornography).

A well-known example of a confiscated work is Wolfenstein 3D, which was confiscated due to the use of Nazi symbols such as swastikas. Since it has not been clarified in court whether video games constitute a form of art (like e.g. movies), the same may happen to all its successors and any other computer game displaying Nazi symbols.

References

This article is primarily a translation of the equivalent German-language article as of September 1, 2005.
  1. ↑ http://www.bundestag.de/htdocs_e/info/030gg.pdf
  2. ↑ Bundesprüfstelle – information in English

External links

English

German

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