Scope of German Youth Protection Regulations
In the field of eSports, questions relating to the protection of minors arise primarily from three aspects: Firstly in relation to games played and streamed or broadcast, further in relation to the local organisation and design of eSports events and in relation to underage players who are active as eSports Players. In all these cases, the minor necessarily gets in contact with the game.
From a legal perspective, the content of games can be categorized as unsuitable (“development impairing” in the words of the law), harmful (“youth endangering”) or even absolutely inadmissible (because punishable by law).
Most eSports titles are “merely” unsuitable for certain age groups. As a consequence, they receive an age rating from state youth authorities (commonly referred to as the “USK rating”), which bindingly determines for which age groups the respective game is suitable or unsuitable.
When it comes to selling games on data carriers, the games may only be distributed to customers of the relevant age group. Games that are harmful to minors are subject to the additional restrictions if the harmful character is obvious and severe, or if the Federal Review Board for Media that Endanger Minors (BPjM) has determined it (so-called “indexing”).
Standards are somewhat softer for on-line and downloadable games. The provider only has to take certain measures so that unsuitable content is not accessible to younger age groups. Content that is harmful to minors may however only be provided if it is ensured that minors do not have access. This requires sophisticated technical age gates including face-to-face identification mechanisms.
Minors as eSports athletes or passive consumers
Since games that are harmful or unsuitable to (certain) minors may not be made accessible to them, a minor generally cannot participate in an eSports tournament as an athlete if they are too young for the game that is being played. Exceptions may apply in certain cases where an unsuitable game has been provided by the parents or guardians (who are not bound by age ratings), but it is unclear whether these exceptions meant for private home use can extend to public tournaments.
However, just because they are too young to play, minors are not necessarily banned from viewing matches. When it comes to the consumption of eSports events via live stream and/or the subsequently available recording, the age rating of the game can only be one of several non-binding indications for the assessment under youth protection law.
This is because on the one hand, the spectator lacks the direct possibility of influence and action that is open to the player. In computer games, interactivity leads to a changed effect on the player, who is drawn into the action and forced to make decisions under a “pressure to act”. This is not the case when watching a sports event, where the spectator remains passive. On the other hand, a live or broadcast match will usually feature commentary by moderators, which frames the gameplay events and usually emphasizes the competitive and tactical aspects of the game rather than the level of violence or other mature content. This also influences the perception of the viewer and therefore the potential effects on younger audiences.
Compliance requirements for broadcasters
Irrespective of the fact that the age rating of the eSports title is not the sole criterion for classifying live broadcasts, the broadcast may still be subject to an age restriction for younger viewers. In the case of unsuitable content, the provider may fulfil its obligations with regard to the protection of minors through precautionary measures such as using XML age labels that can be processed by filter software, or by restricting availability of the content to night time (after 10 PM for 16+ and after 11 PM for 18+ content). Harmful content however has to be shielded from minors with more sophisticated measures (see above).
An exception could again apply case of larger tournaments, where a special privilege for news reporting could apply. In this case, the provider would not have to take any special precautions to exclude younger viewers. It is not quite clear whether eSports are currently considered as sufficiently “newsworthy” in Germany, but some traditional TV broadcasters have started some limited coverage, which could indicate a positive development in this issue.
Young eAthletes and Youth Protection Regulations
Professional eSports players, who may play exclusively for a team and earn a profit by doing so could be classified as employees, comparable to athletes in “classic” sports. But those who are not employed by a club or a certain clan as employees, can also play professionally and earn their living (partly) with prize money, or the monetization of streams.
Generally, for minors as professional eAthletes, the general rules of the German Civil Code for limited legal capacity apply. Irrespective of whether eAthletes become active as employees or as self-employed players, minors require the approval of their legal representatives to exercise such activities. These requirements concern not only the conclusion of service or employment contracts with clans or clubs, but also, for example, sponsoring or equipment contracts.
Children under the age of 14 may not be employed as eAthletes. Generally, minors may not be employed for more than eight hours a day and no more than 40 hours a week. These limits must be taken into account in particular when scheduling the training.
Finally, there are mandatory limits on working nights and weekends or holidays, which are likely to be particularly relevant for eAthletes.
Special thanks to our trainee lawyer Franziska Kues for her contributions to this article.