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German Law Archive |
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| Media and the protection of young persons |
Published by Inter Nationes, and reproduced with kind permission.
Media consumption, above all video and computer games, is attractive and important to the young. The growing diversity of electronic media in particular means that children and juveniles are being exposed more and more to influences which might also have a negative effect on their intellectual and moral development. This is where media-related protection for young persons comes in.
This kind of protection does not mean that children and juveniles should be prevented from gaining access to media. The main concern is that they should learn to use them with a sense of responsibility.
In recent years, the media-related protection of juveniles has been extended and improved in various statutes as a counter-measure to the growing dangers for young persons arising out of developments in the media sector. Particularly important here have been section 7 – the video section, as it is termed – in the Act to regulate the public protection of young persons (Gesetz zum Schutze der Jugend in der Öffentlichkeit), prescribing the age-group marking of video cassettes, and also the ban on the hiring out, in shops open to minors, of video programmes which could be harmful to young persons. A further feature of the enhanced media-related protection for the young has been a more stringent framing, in section 131 of the Criminal Code (Strafgesetzbuch), of the ban on the production, dissemination and introduction of media which glorify violence or depict it as harmless. Also relevant now is the regulation made under the Information and Communication Services Act (Informations- und Kommunikationsdienste-Gesetz), which came into force on 1 August 1997 and contains in Article 6 specific provisions in respect of young persons. These relate inter alia to the notion of "writings", covering other media as well such as sound records, video cassettes, computer games and CD-Roms, and to the requirement that those offering such services should appoint someone with special responsibility for the protection of young persons.
The Basic Law (Grundgesetz) of the Federal Republic of Germany stipulates in Article 5: "Everyone shall have the right freely to express and disseminate his opinion in speech, writing and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship." All legislation has its limits, however, where other equally important rights might be violated. Thus Article 5 paragraph 2 of the Basic Law ensures the protection of young persons. In the case of children and juveniles, this basic right also means that they should be protected from such media as might unfavourably affect their social and ethical maturation. This is not only the responsibility of parents or others charged with the child’s upbringing: the State, too – under Article 20 of the Basic Law a social state based on the rule of law – is called upon to take appropriate action. To this end, the Act to regulate the dissemination of writings harmful to young persons (Gesetz über die Verbreitung jugendgefährdender Schriften) was passed by the German parliament, the Bundestag, in 1953, entering into force on 14 July of that year. Like all other statutes aimed at protecting the young, this Act, too, is intended to provide positive and constructive support to work with young persons, supplementing as preventive legislation the existing protective framework in respect of juveniles. It provides, in short, a "statutory flanking measure" for the fostering of the kind of work in the area of the media which is likely to be beneficial to young people.
To implement media-related protection for the young, the Act to regulate the dissemination of writings harmful to young persons provides for the setting up of a government agency with the name "Federal Supervisory Body for Writings Harmful to Young Persons" (Bundesprüfstelle für jugendgefährdende Schriften), which formally came into being on 14 May 1954. The first meeting at which decisions were taken on proposals was held on 15 June 1954.
The Federal Supervisory Body comes within the purview of the Federal Ministry for Family, Senior Citizens, Women and Youth, and has functions similar to those of a court. Its members, that is, the assessors together with the chairperson, are not bound by any instructions from above when conducting indexing proceedings.
Thus for example books which glorify the National Socialist regime are indexed to combat Neo-Nazism and hinder the influencing of the young by right-wing radicalism. Particularly in recent years, the Federal Supervisory Body has been principally engaged in indexing proceedings involving brutal videos and computer games which glorify war or are racist. Additionally, since 1991, the supervisory agency has dealt increasingly with applications for the indexing of audio-taped material with right-wing radical content.
The Federal Supervisory Body can only take steps where a formal application is made. Entitled to make an application are the various State and local youth authorities and offices, and the Federal Ministry for Family, Senior Citizens, Women and Youth. Since German reunification, the number of bodies empowered to make an application has risen to over 800 in all.
When a particular item is submitted for examination, the decision on whether it constitutes a danger to the young is taken by a committee of twelve persons, made up of the chairperson of the Supervisory Body, eight assessors representing various groups, and three assessors from federal states (Länder).
Upon recommendation by the associations they belong to, the eight members representing the different groups are appointed by the Federal Ministry for Family, Senior Citizens, Women and Youth from the following circles:
The members from the federal states are nominated by the state governments.
In cases of obvious potential harm, the enabling Act allows simplified proceedings in which a decision on indexing can be taken by a committee of three.
The committee of three is composed of the chairperson of the Federal Supervisory Body, one member chosen from the groups art, literature, book trade, and publishers, and one additional member.
On the question of what kinds of media content can place children and young persons at risk, section 1 of the Act to regulate the dissemination of writings harmful to young persons stipulates as follows:
"Writings which are such as might morally endanger children or young persons shall be recorded in a list. These include in particular writings which are immoral, coarsening in their effect, providing incitement to violence, crime or racial hatred, and glorifying war."
This list has exemplary character and can be updated by the decisions taken by the Federal Supervisory Body. The following are the main indexing areas:
It is with representations of violence that the Federal Supervisory Body has to concern itself most often. In this area, it has indexed mainly videos and computer games.
Media presentations of violence have a coarsening effect, for example, where
The propagation and glorification of National Socialist ideology in the "Third Reich" is not expressly listed in the exemplary catalogue of the Act on the dissemination of writings and media contents likely to be harmful to the young. Nonetheless, the adjudication of the Federal Administrative Court very soon confirmed the intervention of the Federal Supervisory Body: writings hostile to the constitution are disorientating in terms of social ethics, in other words, both right-wing radical and Neo-Nazi writings.
Most frequently, National Socialist ideology is disseminated in books recounting personal experiences and recollections, but also on sound records and, recently, in computer games. Here National Socialist tendencies are mixed with racist tones.
Propagation of National Socialist ideology which is such as to place young persons at risk can be deemed to exist where:
A glorification of war, of a kind likely to endanger the young, exists where war is portrayed as attractive or as a possibility of acquiring recognition or fame.
A playing down of war can be equivalent to a glorification of war and there-fore equally harmful to the young where death, destruction, and the deprivation and misery of war are trivialised.
A medium is pornographic where, diminishing all other human dimensions, it foregrounds sexual acts in a coarsely insistent fashion and displays an objective general tendency aimed exclusively or mainly at stimulation of the sexual drive.
Even where a medium is not pornographic, it still counts as producing a disorientation in sexual ethics where it degrades persons to sexually compliant objects – for example, where women are reduced to sexual objects. The same applies where a medium advocates practices which discriminate against women, propagates sadistic behaviour as a means of attaining greater sexual desire, and where rape is depicted as giving sexual pleasure.
Media showing sexual activities with children, with animals, or in connection with violence, represent under section 184 subsection 3 of the Criminal Code not only a danger to young persons, but are also socially damaging. It is therefore not only an offence to make them available to minors, but also to adults.
Media whose contents are likely to cause a disorientation in sexual ethics are most often submitted to the Federal Supervisory Body in the form of print media (magazines, paperback books). A great many pornographic video games have also been indexed. Videos with pornographic content are very seldom submitted to the Federal Supervisory Body, such products being for the most part available only in special shops to which children and juveniles are not allowed access anyway.
Section 6 of the above Act sets out the cases in which media must be presumed to represent a source of danger to the young. Among the media likely to cause serious harm to young persons are those which
Media putting young persons seriously at risk are indexed by law. In other words, the restrictions on making them available and disseminating them apply even without indexing by the Federal Supervisory Body.
However, in order to avoid any uncertainty in trade circles, the supervisory office, upon application, also expressly places seriously harmful media on the list and gives notice of this in the Federal Gazette.
Not everything constituting a danger to the young can be automatically indexed. Section 1 subsection 2 of the Act to regulate the dissemination of writings and media contents harmful to young persons defines exceptions which must be observed in indexing proceedings. Thus media cannot be indexed solely on account of their political, social, religious or philosophical content, even if they constitute a danger to the young. Where, however, such danger follows from other criteria, there is no further obstacle to indexing.
Media contents hostile to the constitution are not protected by this clause, conflicting as they do with the Basic Law. They can also be indexed when the danger to the young arises solely out of their political message. This applies especially to neo-nazi propaganda.
Additionally, art, science, research and teaching can claim precedence over protection for young persons. Art is a subject on which the highest courts have expressed an opinion a number of times, and in doing so, they have repeatedly changed their view on the relationship between art and the protection of the young. The currently applicable dictum on that relationship is contained in the decision of the Federal Constitutional Court of 27.11.1990. Art is the result of a freely creative forming and shaping, in which the artist’s impressions, experiences and fantasies are brought to direct visual perception. This is a direct expression of the artist‘s individual personality. Artistic freedom also embraces the choice of a content which might place young persons at risk, for example violence and sexuality, as well as the forming of that content in a presentational mode chosen by the artist himself.
Whether art should be accorded precedence over protection of the young, or whether the danger to the young is so great that artistic freedom must take second place, involves a weighing up of the two legal entities.
In the case of art, the interpretation made in such instances must do justice to the work in question, with account being taken of the artistic intent of the creator, the overall conception of the work, and the specific details of the form chosen. At the same time, in addition to an appropriate interpretation of the work, consideration must be had to the real effects of a work of art. Minors might have an understanding of it which is different from that of adults. If art is to be accorded precedence, then indexing is not permissible despite any endangering of the young. If it is the danger which comes to the fore, then a work of art, too, can be indexed.
On principle, anything which serves purposes of science, research and teaching cannot be indexed. Appeal to this is made particularly by authors seeking to present incorrectly the causes of the Second World War, or to glorify, play down or deny National Socialist crimes. Science, research and teaching, however, are only served by a medium which captures the essence, makes careful observations, and reproduces facts faithfully.
Public interest can also claim precedence over indexing. This is the case, for example, where the issue is one about which the general public should be informed, or where they have been asked to help in the clearing up of crimes and the presentation takes the form of reporting.
Once a writing has been placed on the list of writings dangerous to young persons and notice of the indexing has been made in the Federal Gazette, it is subject to certain restrictions on availability, presentation, dissemination and advertising. These restrictions are set out in detail in sections 3 – 5 of the Act to regulate the dissemination of writings and media contents harmful to young persons. Violation of these provisions is punishable by a fine or a custodial sentence (section 21 of the Act).
Section 3 of the Act prohibits offering indexed media, or making them available or accessible, to children or juveniles.
Making accessible is here the superordinate term, meaning that nobody is permitted to show children or juveniles the content of an indexed medium.
It is forbidden to disseminate, store, or otherwise make accessible, indexed contents via information and communication services. This does not apply where technical precautions have been taken to ensure that the offer or the dissemination of the content can be limited to adult users.
Since the parental rights set out in Article 6 of the Basic Law must remain privileged, all those charged with the upbringing of children are exempt from criminal sanction if they make indexed media accessible to their children. This is laid down in section 21 subsection 4 of the Act to regulate the dissemination of writings harmful to young persons.
Where tradespersons also deal in indexed media, they are not allowed to exhibit or offer them in places to which children and juveniles have access, or which they can see into. In other words, indexed media can only be sold "under the counter".
Where indexed media are hired out commercially (e.g. video hire), the premises in which the media are offered and loaned must comply with special requirements.
Indexed media hired out to customers may only be displayed or offered in shops, entry to which must be forbidden for children or juveniles. In addition, it must not be possible to look into the shop from outside. This means, for example, that indexed videos may not be displayed or offered in family videothèques.
Section 4 of the Act to regulate the dissemination of writings harmful to young persons contains a series of restrictions on commercial dealings in indexed media.
Indexed media must not be offered, sold, loaned or kept in stock
In the mail order trade, it is forbidden to deal in media of this kind because such traders have difficulty in checking the age of their customers. If someone states on the order form that he is 18, it is by no means certain that he has actually attained that age. Publishers and middlemen are forbidden to make deliveries to the proprietors of the businesses listed above.
Moreover, publishers, middlemen and importers are obliged to inform those they supply of the indexing.
Section 4 of the Harmful Writings Act contains three bans on advertising:
Forbidden is advertising in any form, including advertising not in itself constituting a danger to the young. Even just mentioning the title of an indexed medium is forbidden (what is known in German as "object-neutral advertising").
Indexing does not result in a general ban. Rather, it is simply intended to prevent children and young persons coming into contact with potentially harmful media. It is for this reason that the provisions made by sections 3 – 5 of the Act are essentially to be understood not as bans, but as restrictions.
Appointment of persons with special responsibility for the protection of the young or of organisations of voluntary self-regulation
With the entry into force of the Information and Communication Services Act, commercial providers of electronic information and communication services were required to appoint someone with special responsibility for the protection of the young if these services are on general offer and may contain material representing a danger to the young.
This duty incumbent upon the service provider can also be met by his calling upon an organisation of voluntary self-regulation to monitor compliance with the relevant provisions of the Act.
Seizure and confiscation of media do not fall within the purview of the Federal Supervisory Body, but is rather a matter for the public prosecution authorities, who must first obtain the necessary court order.
There is a wide range of contexts in which seizure and confiscation can take place, among the most important being the seizure/confiscation of media which meet the definitional requirements of section 131 or of section 184 subsection 3 of the Criminal Code.
The first-mentioned provision relates to media representations glorifying or playing down violence, or showing violence in a manner which is excessive and dismissive of human dignity.
The second provision places a ban on sadistic, sodomite and paedophile pornography.
Media fulfilling the definitional requirements of section 131 or section 184 subsection 3 of the Criminal Code do not only count as representing a danger to the young: they are also socially harmful. Accordingly, their dissemination is generally prohibited, and if they do appear on the market, they are seized or confiscated.
The basis for examination is provided by the Act to regulate the public protection of young persons, under section 6 of which juveniles are not allowed to be present at public showings of films. Adults, on the other hand, have unrestricted access to any film without further examination of the latter. Juveniles are only allowed in to public film showings where the films have been passed as suitable for young people by the main youth authorities in the Land in question.
The age categories are laid down in the Act as follows:
Since 1.2.1985, a further corresponding provision has been made for video films as well. Under section 7 of the Act, recorded video cassettes and comparable visual media cannot be made accessible to young persons unless they have been approved by the main youth authorities of the Land. The same categories apply as for cinematic films.
Collaboration between the film industry body for voluntary self-control (freiwillige Selbstkontrolle – FSK) and the main youth authorities in the Länder
The FSK was set up by the film industry after the Second World War. The idea was that censorship by the military occupation authorities should be replaced by the film industry’s own check, conducted by persons who had kept their distance from the Nazi state and were therefore acceptable to the military. (Of primary importance at that time was not the protection of the young, but rather the fear of the occupying powers that National Socialist ideas could be disseminated via feature films.)
It was not long, however, before the check was also carried out with a view to protecting young persons, a number of years before the passing of the Youth Protection Act.
The voluntary self-control by the film industry, it must be said, was a set-up that worked well. It had the technical means of showing films, and no costs had to be borne by the public purse. Consequently, in an agreement between the Länder, the main Land youth authorities, by law responsible for the necessary check, adopted the results of the examination by the FSK as the basis for their own decision on passing films for viewing by the young.
With the aim of placing the examination on as broad a footing as possible, a commission on fundamentals was created, its members including representatives not only of the film and video industry and the main Land youth authorities, but also among others of the churches, the Federal Ministry of the Interior, and the Federal Ministry for Family, Senior Citizens, Women and Youth (generally responsible for issues relating to young persons). The "FSK basic principles" developed by this commission regulate both the examination procedure and the composition of the committees.
Under the Länder agreement, the votes cast by the FSK committees are treated as expert opinions which are adopted by the main Land youth authorities as their own decisions. This does not mean, however, that the individual Länder lose the right, where they are not satisfied with judgments of the FSK, to take and implement a different decision for their own area of jurisdiction. In practice, this has not yet happened.
Films are first examined by the working committee of the FSK, consisting of seven persons: the permanent representative of the main Land youth authorities (chair), the expert for youth protection (appointed on a rotating basis by one of the main Land authorities), two representatives drawn from the public domain (church, Federal Youth Ring (Bundesjugendring), etc.), plus three representatives of the film and video industry. The latter must not, however, be actively involved in the industry. A film is passed for viewing on the basis of a simple majority (that is, one of the members representing the public interest always has to vote in favour). All the examiners – including those nominated by the film industry – carry responsibility for the protection of the young under the FSK principles.
For the purposes of implementing the Media Services Agreement, in force since 1 August 1997, the Länder, too, have set up a central office for the implementation of youth protection provisions in the media services: jugendschutz.net. The latter operates in the Internet itself, seeking out material which is harmful and damaging to the young. In order to impose restrictions on this kind of problematic content, the preferred option is to enter into a cooperation with those responsible for it such that they take their own initiative. They have the possibility of placing a block on certain material, modifying it or rendering it accessible only to adults via appropriate measures.
Every cinematic feature film is given, for every copy, a card stating that it has been passed for showing. This must be produced at the box office whenever the relevant authorities carry out a check. Every cinema proprietor is required to display clearly at the box office the age category for which the film has been passed, and in cases of doubt, to check a person’s identity card to ensure that access is only granted to those who have attained the relevant age.
The same applies to the sale or hire of recorded video cassettes, to which the supplier must affix a forgery-proof label. Video films which have not been passed for showing to young persons, or which have not been submitted for scrutiny, cannot be offered for sale by mail order.
The law sets out a number of general clauses, the essential import of which is that the films must not be harmful to the age groups for which they have been passed. In the FSK principles, these general wordings are lent greater precision.
The bases for examination are provided by the findings of developmental psychology, of research into the effects of the media, and of research into young people. Any attempt to align decisions with the results of scientific research always leaves room for discretion on the part of the examining committee.
In addition, the FSK organises film viewings with young people in order to discuss, with those directly affected, critical instances in which a film has been passed. Furthermore, an intensive exchange of experience takes place with other European examining bodies.
Whilst the results of scrutiny by the FSK are only adopted for cinema and video films, approval also applies indirectly to the television broadcasting of films. The National Broadcasting Agreement (Rundfunkstaatsvertrag), constituting the legal basis for radio and television in Germany, links television broadcasting times to viewing approval for cinema and video films in its section 3: A film carrying the marking "Not passed for viewing under the age of 18 years" for cinema and video purposes may only be shown on television after 11 p.m. Where the film has been passed for viewing from the age of 16 years, it may only be broadcast after 10 p.m.
For films which have been approved from the age of 12 or 6, or without any age limit, no times are stipulated, although this does not mean that they may be broadcast completely without restriction.
In addition to the broadcasting time regulations, there is also a ban on the broadcasting of programmes which glorify violence or are pornographic (sections 131 and 184 of the Criminal Code).
Responsibility for ensuring compliance with the provisions of the Broadcasting Agreement lies with the Land media institutes (Landesmedienanstalten), to be found in every Bundesland. They grant formal recognition to new radio and television companies, monitor compliance with the provisions of the Broadcasting Agreement in respect of programmes, and can render certain provisions more specific or grant exceptions to them – including to the fixed broadcasting times resulting from approval for juvenile viewing. In cases of serious infringement, the competent Land media institute can, as a last resort, take away a broadcaster‘s licence.
Alongside the FSK, the commercial television companies have also joined forces in establishing their own self-control (Freiwillige Selbstkontrolle Fernsehen – FSF): this came into being in 1993. This means that, since April 1994, there has been a preliminary voluntary check on the programmes of commercial broadcasters in respect of youth protection. Even if the FSF is financed by private companies, the examination itself is supervised by an independent curatorium, with no links to any of the companies, and composed of about 70 examiners working in an honorary capacity. (They are drawn, for example, from youth authorities or establishments in the field of media education.)
Finally, since 1997, we have what is known as multimedia self-control (Freiwillige Selbstkontrolle Multimedia – FSM). The latter aims at preventing the dissemination via online services of such contents as are illegal and potentially harmful to the young. For this purpose, an organisation was created to provide the users of online services with the necessary know-how about technical protective devices and the responsible use of online media. Additionally, the FSM operates a complaints service, open to anyone wishing to complain about contents which are illegal or which constitute a danger to the young.
The complaints service uses an established procedure to check whether the offending content does in fact contravene the FMS code of conduct. Should this be the case, it takes measures aimed at ensuring the swiftest possible removal of the subject-matter in question.
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Substantial sections of this introduction have been taken from the booklet "Gesetzlicher Jugendmedienschutz" (Media and the statutory protection of young persons), published by the Federal Supervisory Office for Writings Harmful to Young Persons, Bonn. This text was published by Inter Nationes. Reproduced with kind permission. This HTML edition by Lawrence Schäfer and © 2000 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.