Articles
Association for the Voluntary Self-Monitoring of Multimedia Service Providers (Freiwillige Selbstkontrolle Multimedia-Diensteanbieter e.V.)

Status: 14 October 2008

§ 1 Name and Domicile

1. The association bears the name Freiwillige Selbstkontrolle Multimedia-Diensteanbieter, or FSM (Association for the Voluntary Self-Monitoring of Multimedia Service Providers) and is a registered association with an entry in the Vereinsregister Berlin (AG Charlottenburg).
2. The Association is domiciled in Berlin, Germany.
3. The business year is the calendar year.

§ 2 Purpose and Objectives

1. The purpose of the Association is to promote both protection and education of minors and general consumer protection in the multimedia sector.
2. The Association achieves its objectives by:
   • Setting up a voluntary self-monitoring organisation to implement the principles set out in the Code of Conduct for the Voluntary Self-Monitoring of Multimedia Service Providers (provided as an annex to these articles) and to observe its rules.
   • Informing the general public about its work, use of protection technologies and responsible use of telemedia.
   • Representing members' interests on national, European and international committees, at conferences, in panel discussions, at hearings and in legislative processes.
   • Pursuing ongoing dialogue with the Commission for the Protection of Minors from Unsuitable Media Content (KJM), the various Länder (state) media institutions, and other state agencies, institutions and self-monitoring organisations at national, European and international level; the ultimate aim being to cooperate with these various institutions.
   • Providing a forum for critical social discourse on issues involving the protection of minors from unsuitable media content and the promotion of voluntary self-monitoring based on the FSM Code of Conduct and its underlying principles.
   • Operating a complaints office according to its Complaints Policy to fulfil in particular FSM obligations in voluntary self-monitoring under Germany's Interstate Treaty for the Protection of Human Dignity and the Protection of Minors in the Media (JMStV).
   • Protecting the basic rights of telemedia and media service providers.
   • Taking account of youth protection needs and other protection needs under the JMStV by implementing the Code of Conduct and its sub-codes for specific member groups.
   • Supporting members by monitoring compliance with the FSM Code of Conduct; prior to publication, members may opt to present any youth protection-related content for independent review by the Review Commission.
3. FSM responsibilities within the meaning of voluntary self-monitoring may be expanded to include other sectors as agreed by the General Assembly.
4. The Association acts on behalf and in the interests of the public both exclusively and directly, and in some cases indirectly, in accordance with Section 57 (1) 2nd sentence of the German Tax Code (Abgabenordnung) and within the meaning of the section on 'tax-exempted purposes'. The Association is a not-for-profit organisation.

§ 3 Membership

1. The Association comprises ordinary, sponsoring and associate members.
2. Any telemedia provider domiciled in Germany can become an ordinary member. Applications for membership are submitted in writing for approval by the Board.
3. Legal entities, especially German-based associations in the communications and media industry, can become sponsoring members even if they fail to meet the requirements set out in (2). A legally dependent subordinate part of an organisation can become a sponsoring member if its own membership is clearly identifiable and its subordinate status derives from a decision made by a legal entity. Applications for membership are submitted in writing for approval by the Board.
4. Businesses with a workforce of less than 50 that are not ordinary FSM members but are affiliated to an association that is a sponsoring member of FSM may apply to become associate members of FSM. Applications for membership are submitted in writing for approval by the Board.

§ 4 Member Obligations

1. Members agree to support the Association's objectives, conduct themselves in such a way as to avoid damaging FSM's image and pay their membership fees on time in accordance with the Members' Fees Rules contained as an annex to these articles.
2. Members agree to sign and implement the Code of Conduct, accept decisions made by the complaints committees and comply with their requirements. Serious or repeated violations of this obligation will be penalised in accordance with Section 8 (6) and (7).
3. Members who wish FSM to act as their Youth Protection Representative shall include FSM in an appropriate and timely manner in all issues of service production, acquisition, planning and design and in all decisions aimed at ensuring the protection of minors, and shall keep FSM informed of its ongoing services. Members are under obligation to request a review of their services by the Review Commission; this includes a one-off preliminary review. Any violation of this obligation shall entitle FSM to state that for that specific service, it was not requested to act as Youth Protection Representative within the meaning of Section 7 of JMStV. Only once it has conducted a preliminary review can FSM assume responsibility as Youth Protection Representative within the meaning of Section 7 of JMStV.
4. Members who use FSM as their Youth Protection Representative shall inform the FSM Secretariat regarding any web sites for which they are responsible and of any changes made to them. A violation of this obligation can result in disciplinary proceedings as laid down in Section 8 (6).

§ 5 Rights of Ordinary Members

1. On behalf of its ordinary members (Section 3 (2)), the Association creates and maintains the conditions to allow recognition under the JMStV. Consortiums belonging to the Association may also apply for recognition.
2. Ordinary members have the right to:
   • Attend the General Assembly and put forward resolutions.
   • Participate in working group meetings and Association events.
   • Obtain information and advice from Association bodies.
   • Receive a funding contribution towards the costs of court proceedings of fundamental importance if the Board approves an application for recognition of a case as a test case. Should FSM not be able to provide financial assistance from its current budget, the assistance shall be funded by member levy subject to General Assembly approval.
   • Access to privileged information on issues of interest to members.
3. Ordinary members may:
   • In compliance with Section 7 (2) of the JMStV, designate FSM to act as their Youth Protection Representative within the meaning of Section 7 (1) of the JMStV. This is not valid if the the acceptance of the assignment as Youth Protection Representative would mean extraordinary much inspection and counseling. Normally, above-average efforts of inspection and counseling are neccessary if the service mainly contents user generated content or if the service is exceptionally large. The Board of the FSM will advise the applying company accordingly before its desicion.
   • Following their official recognition, involve FSM in issues concerning accusations made by the Commission for the Protection of Minors from Unsuitable Media Content (KJM) regarding violation of the JMStV so that the Complaints Office and at least one complaints committee can review the situation in accordance with Section 20 (5) of the JMStV. The member may after receiving a request from a legally recognised youth services provider (Section 19 (3) No. 4 JMStV) ask a complaints committee to review a previous decision. Further action is governed by the Complaints Policy.
4. Ordinary members have a vote in all matters concerning the Association. Voting rights are allocated as follows:
   

   Member Company Sales per Calendar Year	No. of Votes
   over 100 million euros	4
   40 million – 100 million euros	3
   10 million – 40 million euros	2
   5 million – 10 million euros	1
   1 million – 05 million euros	1
   less than 1 million euros	1

   
   If the company does not indicate its sales, it is awarded four votes and its annual membership fee is classified in the highest category (category 1).
   
   Where a vote involves a change in the Association's purpose, dissolution of the Association or the issuance or amendment of the Members' Fees Rules, each voting member shall have only one vote.

§ 6 Rights of Sponsoring Members

1. Sponsoring members have the right to:
   • Attend the General Assembly.
   • Participate in working group meetings and Association events, unless a working group is expressly restricted to ordinary members only.
   • Obtain information and advice from Association bodies.
   • Access to privileged information on issues of interest to members.
2. Sponsoring members shall be entitled to:
   • In compliance with Section 7 (2) of the JMStV, designate FSM to act as their Youth Protection Representative within the meaning of Section 7 (1) of the JMStV. This is not valid if the the acceptance of the assignment as Youth Protection Representative would mean extraordinary much inspection and counseling. Normally, above-average efforts of inspection and counseling are neccessary if the service mainly contents user generated content or if the service is exceptionally large. The Board of the FSM will advise the applying company accordingly before its desicion.
3. Sponsoring members shall have no vote except on the following issues:
   • Amendment of the rights and obligations of and the requirements for sponsoring members.
   • Amendment of the Members' Fees Rules and member levies where it affects the fees paid by sponsoring members.
   • A change in the Association's purpose.
   • Dissolution of the Association.
   • Election of the Board according to Section 10 (1).
4. In cases where a sponsoring member has a vote, he or she shall have a single vote only.

§ 7 Rights of Associate Members

1. Unless an exception has been made, the rights of associate members correspond in scope to the rights afforded to sponsoring members.
2. Associate members have no vote.

§ 8 Acquisition and Termination of Membership / Payment of Membership Fees

1. Membership is subject to application. Applicants shall submit with their application a signed copy of the Code of Conduct, including any other signed codes applicable to specific member groups/themes, and designate a point of contact who has the right to vote and make statements. By submitting an application, applicants declare their acceptance of the FSM Articles of Association, Code of Conduct, Complaints Policy and Members' Fees Rules.
2. Applications are subject to approval by the Board. The Board determines the fee classification in accordance with the Members' Fees Rules.
3. Members fees are paid on an annual basis. Fees are due in advance on 1 January for the full year.
4. Membership may be terminated as follows:
   • Termination of membership by a member must be submitted in writing to the principal Managing Director. Notice of termination may be given only to the end of a business year, by giving three months' notice.
   • Membership ends following a member company's exclusion or deletion from the Company Register or any other deletion or dissolution. The member shall inform the principal Managing Director of the deletion or dissolution and provide the necessary documentation.
   • Associate membership ends automatically upon withdrawal of the self-monitoring declaration or when the recommending member's membership ends.
5. When membership is terminated within a business year, the full annual contribution shall remain unchanged. Partial refunds shall not be made.
6. Serious or repeated violations of these Articles, the Code of Conduct or a decision of the Complaints Committee shall result in the member receiving a written warning from the Board. If after receiving a warning, a member continues to disregard the Articles, the Code of Conduct or a decision of the Complaints Committee, the Board shall be entitled to issue an appropriate Association penalty. Association penalties take the form of monetary fines up to 20,000 EUR or exclusion from the Association.
7. The Board may exclude a member who, due either to wilful or grossly negligent conduct, acts against the Association's interests. A company acts either to wilful or glossly negligent conduct especially against the Association's interest, if it harm the reputaion or the interests or if it insistently acts contrary the Association's intentions. Normally, a company also acts against the Association's intentions, if it despite repeated warnings from the Complaint Committee regarding a proven violation of the Code of Conduct, omits to take remedial action – even though remedy is possible and can be reasonably expected – and if it repeatedly ignores sanctions or is subject to another Association penalty issued by the Board. A member company which has despite reminders outstanding payments of the membership fee can also be excluded from the Association. The company must be informed about the impending exclusion three weeks at latest before the Board takes its decision. The excluded member may contest the Board decision within a period of three weeks and put the decision to a vote by the General Assembly.

§ 9 Association Bodies

The Association comprises two bodies: the Board and the General Assembly. It also has two committees: the Complaints Committee established under Section 12 and the Review Commission established under Section 13.

§ 10 The Board

1. The Board comprises the Chair, the Deputy Chair, the Treasurer and up to six other members. Each member of the Board has a vote at Board meetings. The Board is elected by majority vote at the General Assembly for a two-year period of tenure; upon expiry of its tenure the Board remains in office until a new election has taken place. Reelection is allowed. Members of the Board work on an honorary basis.
2. The Association is represented both in and out of court by two Board members. For internal purposes only, representation takes the following form: The Association is represented in and out of court by the Chair and one other member of the Board. If the Chair is unavailable, two other members of the Board act as joint representatives.
3. If an Association member leaves the Association, the respective member of the Board must leave the Board. The same applies if a member of the Board no longer represents an Association member or no longer works for the company or the association for which he or she worked at the time of election. The next General Assembly elects a successor for the departing member of the Board. The period of tenure for the newly elected Board member ends when the period of tenure stated in (1) above expires.
4. The Board decides by simple majority vote. It has a quorum when more than half of its voting members are present or have written representation. In the absence of a quorum, the next Board meeting shall be seen to have a quorum for all agenda items listed in the invitation to the previous Board meeting. The subsequent Board meeting may take place on the same day of the previous Board meeting. This must be stated in the invitation.
5. The Board may call in a consulting vote at its meetings.

§ 11 General Assembly

1. The Ordinary General Assembly is held annually. Extraordinary general assemblies are held as needed in the interests of the Association. An extraordinary general assembly must be called if one quarter of members submit a written request asking the Board to call such an assembly and stating the purpose and objective.
2. General assemblies are called in writing by the Chair or in his or her absence by the Deputy Chair. Invitations include the agenda agreed and approved by the Board and are issued three weeks in advance of the meeting.
3. The General Assembly has the authority to:
   • Receive the Board's report and accounts.
   • Release the Board from office.
   • Elect the Chair, the Deputy Chair, the Treasurer and up to six other Board members (Section 10 (1)).
   • Amend the Articles of Association, the Code of Conduct, the Complaints Policy and the Members' Fees Rules.
   • Extend FSM's responsibility to other areas of voluntary self-monitoring and decide the internal organisational arrangements to make this possible.
   Approval and amendment of sub-codes to the Code of Conduct for specific member groups and themes is decided by the affected members in conjunction with the Board.
4. The General Assembly is presided over by the Chair or in his or her absence by the Deputy Chair. If the Deputy Chair is absent, the General Assembly elect a Board member to preside over the meeting. The General Assembly can approve a change or addition to the agenda approved by the Board.
5. The General Assembly has a quorum if more than half of its voting members are present or are represented by a proxy. In the absence of a quorum, the next General Assembly shall be seen as having a quorum for all agenda items listed in the invitation to the previous General Assembly. The subsequent General Assembly may be held on the same day as the previous one. This must be stated in the invitation.
   
   Voting rights for and the number of votes allocated to the various members for the items requiring a vote are governed by the provision set out in Section 5 (4), Section 6 (3) and (4) of these Articles. Members may effect written transfer of their vote or votes to another member. Written transfer of a vote or votes must be presented to the General Assembly. No member may receive votes from more than two other members.
   
   Giving consideration to any payment conditions agreed by the Board, any member who falls into more than three months arrears with his or her fees (either in whole or in part) shall lose the right to vote until such time as the outstanding amount has been paid.
   
   Unless otherwise stated in these Articles, resolutions at the General Assembly shall be passed by simple majority vote; abstentions count as invalid votes. If the Articles expressly require a three-quarters majority, then a three-quarters majority of all valid votes submitted is required.
   
   Resolutions shall be recorded, stating the place and time of the meeting and the result of the vote. The record shall be signed by the person presiding over the meeting.
   
6. General assembly resolutions may also be passed in a round robin process with a majority vote as required by the Articles. The Board Chair shall send the proposed resolution to each member of the Association in writing, either by post, fax or e-mail. Voting takes place within the period stipulated by the Board Chair; the voting period may not be shorter than three weeks from the time the proposal is sent out. Votes take the form of a written statement to the Board Chair and may be submitted by post, fax or e-mail. No-votes, abstentions and late submissions count as invalid votes. Resolutions passed in a round robin process shall be recorded; the record shall be signed by the Board Chair or the Deputy Chair.

§ 12 Complaints Office

1. The responsibilities of the Complaints Office are set out in the Complaints Policy agreed by a three-quarters majority at the General Assembly.
2. The Complaints Office comprises a manager, staff and the complaints committees. The complaints committees comprise a total of six ordinary members and three deputy members. Where members' staff are active on a complaints committee, they shall not be involved in decisions on their own company or association. When selecting the complaints committees, it must be ensured that selection focuses on individuals whose training and work experience gives them the required knowledge and expertise to guarantee high quality in review decisions and reports. Individuals from social groups will also be considered if they are particularly active in youth protection issues. Members of the complaints committees are appointed by the Board for a minimum period of two years. Members of the Association and the Complaints Office Manager have the right to submit proposals.
3. The Complaints Office manager, its staff and the members of the complaints committees act independently and are not bound by instruction. They are required to observe legal provisions as set out in the JMStV, associated articles and guidelines, the FSM Articles of Association, the FSM Code of Conduct and the FSM Complaints Policy. Members of the complaints committees work on an honorary basis.
4. All other action is governed by the Complaints Policy.

§ 13 Review Commission

1. Review Commission responsibilities, its composition and its application and approval processes are set out in the Review Commission Statute approved by the FSM Board.
2. Ordinary, sponsoring and associate members of FSM have the right and in some cases are required (see Section 4 (3)) to request that the Review Commission review their multimedia services with regard to their compatibility with the FSM Code of Conduct and its respective group-specific sub-codes as well as the according legal rules regarding youth protection in media.
3. Regular, sponsoring and associate members have the right to receive a seal of approval, if the Review Commission has stated that the service agrees with the Code of Conduct and other Sub-Conducts of the FSM as well as all legal rules regarding youth protection in media. Details are arranged in the Statutes of the Review Commission.
4. Where members' staff are active on a complaints committee, they shall not be involved in decisions on their own company or association. When selecting the complaints committees, it must be ensured that selection focuses on individuals whose training and work experience gives them the required knowledge and expertise to guarantee high quality in review decisions and reports. Individuals from social groups will also be considered if they are particularly active in youth protection issues. Members of the complaints committees are appointed by the Board for a minimum period of two years. Members of the Association and the Complaints Office Manager have the right to submit proposals.

§ 14 Secretariat and Management

The Association's administration maintains a central secretariat to manage daily business. The secretariat is run by a manager who is appointed by the Board with a two-thirds majority. Employment and release of staff and the management of daily business is the responsibility of the Manager. All other business is subject to a Business Policy, which is approved by the Board and sets out the work to be performed by the Board and the Manager, and a list of business transactions that require Board approval.

§ 15 Audit

The General Assembly elects two Treasurers for a two-year period of tenure. The treasurers perform an audit of all business documents and submit a report to the primary General Assembly at the end of the business year. Treasurers may be members of the Board. Reelection is allowed.

§ 16 Funding

1. Association costs are covered by members' fees, member levies, donations, state-provided funding, expenditure-related member levies as approved by the Audit Committee, and other funds. Further details are laid down in the Members' Fees Rules. The Members' Fees Rules and any amendments to them are agreed by members and require a three-quarters majority vote.
2. Association funds may be used solely for the purposes set out in these Articles. Members receive no financial assistance from Association funds.

§ 17 Amendments to the Articles and the Code of Conduct

Any amendment to the Articles, the purpose of the Articles or to the Code of Conduct is decided by the General Assembly and requires a three-quarters majority of valid submitted votes.

§ 18 Dissolution of the Association

1. Dissolution of the Association is decided by the General Assembly and requires a four-fifths majority of valid votes. Any proposal to dissolve the Association must be announced with the invitation to the General Assembly giving the correct period of notice.
2. If the Association is dissolved, its funds shall be used for tax-exempted purposes. Resolutions on future use of Association funds may only be implemented with prior approval from the tax authorities.

Berlin, 14 October 2008