After 13 years of stasis despite massive technological progress, the first revision of the State Treaty on Youth Protection in the Media (sometimes also referred to as Interstate Treaty on the Protection of Minors (JMStV)) in October of 2016 represents an effort by German state legislators to adapt their jointly enacted youth protection regulations to the ever-changing realities of digital environments.
These changes come at a time when traditional age rating standards are shifting. Over the past few years, a number of hitherto “indexed” games (subject to heavy marketing restrictions) have been re-rated, and it has been possible in a number of cases to obtain age-ratings for sequels to “indexed” games, even though their content was similar.
1 Age Rating Strategy
As we have discussed in previous publications, age rating standards are shifting and becoming less restrictive in Germany. The recent “unbanning” of an older Duke Nukem game and the slightly younger Bulletstorm are only the last in a series of successful unbanning applications with which publishers have been able to clean up their back catalogues.
The “case law” of the federal youth protection authorities in the matter of imposing marketing restrictions on games also influences the industry age rating body USK. Here as well, we have seen more willingness to rate content that would have been refused a rating a decade or so ago.
However, these results are not guaranteed and automatic. Some unbanning applications have in fact been denied in the last year, especially for games with “realistic” (as opposed to fantasy-themed or post-apocalyptic) settings, and USK has often initially refused ratings that were then only granted upon appeal, with legal support to boot.
Based on this experience, we highly recommend involving legal counsel from the outset, i.e. the initial USK submission, if the game’s content is very graphic, in particular if it is a sequel to an “indexed” title.
2 Online Youth Protection Rules
Regarding the wording of the statute, however, not much has changed. Germany’s youth protection rules are split between the JMStV and the (federal) Youth Protection Act, which is also currently up for reform, but with no fixed timeline yet.
Two aspects of the new rules for the online sphere are of particular relevance for the games industry: A (minor) change introducing information requirements on youth protection officers, and a (larger) change concerning age rating procedures.
2.1 Information Requirements on Youth Protection Officer
German providers of online services as well as foreign providers operating via a German affiliate are required to designate a youth protection officer if they offer content that could potentially impair minors. The officer has the task of advising the provider on issues of youth protection and to serve as a contact for user inquiries regarding youth protection issues. Smaller providers with less than 50 employees or less than 10 million monthly visits may alternatively satisfy this requirement by becoming a member of a self-regulatory organization such as USK.online, which acts as the youth protection officer.
The revision of the JMStV now introduces an obligation to provide electronic contact information of the relevant content provider’s youth protection officer. The contact information has to be easily recognizable as such, directly accessible and always available. If your game, app or website requires the designation of a youth protection officer, remember to update the according contact information – since the provision on accessibility mirrors existing requirements for legal notices on German websites (“Impressum”), we recommend including this contact information in the “Impressum” along with the other mandatory disclosures.
2.2 Confirmation and Transfer of Online Age Ratings to Offline Content
Furthermore, the new JMStV introduces a new procedure for state authorities to formally confirm age ratings issued for online content for use on physical media versions of the same content. Currently, this is only possible the other way around, i.e. age ratings for physical media also apply for any digital distribution of the same content, while the voluntary ratings issued by self-regulatory bodies for purely online content did not have binding force or impact on the classification of corresponding physical media (further details on the ratings procedure can be found in our blog).
Since the revision, state authorities can issue official confirmations for online ratings from self-regulatory bodies. It will then be possible to transfer these ratings to offline content, a potential benefit for foreign publishers seeking to distribute games on physical media in Germany. German authorities have already set up a trial phase to evaluate on how the transfer of (confirmed) online ratings to offline content can be achieved. We will continue to monitor, and report on, any developments regarding this procedure.