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 honour", "provisions for the protection of young persons" may restrict freedom of expression (Article 5 Paragraph 2). The '' Protection of Young Persons Act'' (''Jugendschutzgesetz''), 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 It superseded the ''Gesetz über die Verbreitung jugendgefährdender Schriften'' (Law on the Distribution of Works Harmful to Young Persons) as the legal basis for the restriction of freedom of expression when applied to physical media (printed works,History
The original ''Bundesprüfstelle für jugendgefährdende Schriften'' (''BPjS'', Federal Review Board for Works Harmful to Young Persons) was established on 18 May 1954, after the ''Gesetz über die Verbreitung jugendgefährdender Schriften'' (Law on the Distribution of Works Harmful to Young Persons) was adopted on 9 June 1953. This law was the result of a bill originally proposed by the CDU/CSU in 1949 and presented as a draft to theList of presiding officers
*1954–1966: Robert Schilling *1966–1969: Werner Jungeblodt (Deputy: Eduard Tack) *1969–1991: Rudolf Stefen (Deputies: Elke Monssen-Engberding, later Gerhard Adams) *1991–2016: Elke Monssen-Engberding (Deputies: Dr. Bettina Brockhorst, later Petra Meier) *2016–2020: Martina Hannak-Meinke *Since June 2021: Sebastian Gutknecht (Deputy: Thomas Salzmann)Role and responsibilities
The ''BPjM'' has the following responsibilities: * the placing of media harmful to young people under legally-enforceable prohibition upon the application of ministers for youth and youth welfare offices, so that these media are accessible only to adults; * the promotion of value-oriented, educational media; * the encouragement of public awareness about media protection for young people. § 18 Paragraph 1 of the ''Jugendschutzgesetz'' defines jugendgefährdend ("endangering to young people") to 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: * content which is proscribed by theThe 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 is met: * A work has been rated by the Freiwillige Selbstkontrolle der Filmwirtschaft (the film industry body which practises voluntary rating of movies) and did not receive a ''Keine Jugendfreigabe'' rating. * A work has been rated by the Unterhaltungssoftware Selbstkontrolle (the software industry body which practises voluntary rating of entertainment software) since 1 April 2003.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 andThe 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 ''BzKJ''. The lists are published in ''BzKJ-Aktuell'', a quarterly journal which costs €14 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 their manner(s) of publication have not been tested in court, as only a small number of them have shut down voluntarily after receiving complaints from a number of non-governmental youth protection associations. As such, it is as yet unknown whether the publication of these lists could be a violation of the Youth Protection Act. If it is not, then banning publication of the lists 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 is automatically removed from the ''Index''. If the ''BzKJ'' 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 low, there is little interest in paying 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: Figures are from 2004.Legal consequences
The legal consequences of a work being listed on the ''Index'' are enumerated in § 15 JuSchG: #It must not be sold, provided or otherwise made accessible to minors. #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). #It must be sold within a shop in an area accessible only to adults ("under the counter"). In general, selling indexed titles per mail order is illegal, however, it is permissible if the package may be handed over only to a specified adult, who has to present their identification. #It must not be rented out, except in a shop inaccessible to minors. #It must not be imported by mail order. In this case, an adult buyer (importer) is not subject to penalties, if they themselves have no intentions of further disseminating it to others or minors. #It must not be advertised or announced in a place where the announcement or advertisement could be seen by minors. #If it is for one of the above six causes, production, acquiring, and holding in stores are subject to penalties. 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 should not 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 lean on the side of safety, for example, in the German version of Marc Saltzman's ''Game Design: Secret of the Sages'', the titles of indexed games were replaced by random strings matching only their first letters and lengths. 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).Criticism
The ''BzKJ'' has drawn criticism for de facto censorship, paternalism and restricting the freedom of speech and of the press on the following grounds: * After a work has been indexed, in practice, it also becomes more difficult for adults to get access to it, as indexed works must not be advertised and may be sold by mail order only under strict conditions. The sale of such works is therefore often not profitable and the work thus disappears from the market. * Journalists may carry out self-censorship and choose not to mention the work to avoid possible legal trouble. * Germany is the only Western democracy with an organization like the ''BzKJ''. The rationales for earlier decisions to add works to the index are, in retrospect, reactions to moral panics. An example of this is the controversy about the game '' River Raid''. One counter-argument states that the advertising ban on indexed works is not the aim of the decision to index, but its legal consequence. The ''BzKJ'' 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 minors. This should consequently encourage public debate about the depiction of violence in the media or about other matters of concern. 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 ''BzKJ'' is not a unique organisation in its purpose; 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 ''BzKJs 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 use 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 society as a whole.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, such as 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 and terrorist propaganda, both of which are illegal under international law). 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 was initially not clarified in court whether video games constitute a form of art, the same has happened to later games in the franchise and any other computer game displaying Nazi symbols, including those that portray Nazism in a negative light. These rulings were later loosened in August 2018 as a result of a ruling from April that same year. The web-based game '' Bundesfighter II Turbo'' was released prior to the September 2017 elections, which included parodies of the candidates fighting each other. This included the portrayals of Angela Merkel as a reptiloid and Alexander Gauland, who had a special move that involved Swastika imagery. When this was noticed by public authorities, they began the prosecution of the game in December, submitting it to the Public Prosecutor General's office for review based on the ''Wolfenstein 3D'' decision. The Attorney General declined to consider the game illegal under Strafgesetzbuch section 86a, stating that the 1998 ruling was outdated. Since then, the USK had adopted age ratings for video games and that there was no reason not to consider video games as art within the social adequacy clause. As a result, the Supreme Youth Protection Authority of the Federal States adapted the Attorney General's ruling to be applicable for all video games within Germany and subsequently, the USK announced this change in August 2018. The USK reviews all games to judge if the use of imagery under Section 86a remains within the social adequacy clause and deny ratings to those that fail to meet this allowance.Notes
*''BPjM-Aktuell'', Amtliches Mitteilungsblatt der Bundesprüstelle für jugendgefährdende Medien (BPjM), (print edition), (digital edition)External links
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