Code of Conduct for the Association Freiwillige Selbstkontrolle Multimedia e.V.

Status: 16 October 2007

Preamble

The Association for the Voluntary Self-Monitoring of Multimedia Service Providers [Freiwillige Selbstkontrolle Multimedia-Diensteanbieter e.V. (FSM in short)] has set forth this Code of Conduct to protect children and youth from offers on the telemedia that might threaten or impair their development or education to become self-responsible personalities capable of living in our society as well as to protect against offers violating the right of human dignity or other objects of legal protection under the JMStV [Inter-State Agreement on Youth Protection in the Media].

Hereby, the FSM wishes to make its contribution toward strengthening the freedoms of telemedia service providers and protecting the interests of users and the general public, which are worthy of protection, in particular against discrimination and the glorification of violence, and to strengthen protection for youth on the basis of self-responsibility. Any form of censure will be rejected.

The voluntary self-monitoring aims at encouraging telemedia service providers to join the Association in order to make them abide by the principles under this Code of Conduct and to punish violations of this Code.

The FSM respects the freedom of expression inherent in individual communication within the services offered and the basic rights of users to freedom of information. At the same time, the FSM advocates the basic right to freedom of opinion and of the press, the basic right to freedom of property and exercising a profession as well as the basic right to self-determination with respect to information and the freedom of arts as provided under the Constitution of the Federal Republic of Germany, Art. 5, Section 3, Clause 1.

The FSM, by providing information on its own work, applying technical protection mechanisms and establishing an information and contact office, strives to communicate the idea of responsible use of these services, including those services accessible on the Internet.

The obligations set forth under this Code of Conduct should not and cannot establish any responsibility to any third party, nor facilitate the substantiation of such responsibility. The FSM Complaint Office procedure shall not preclude any legal recourse.

The FSM will cooperate with further voluntary self-monitoring bodies – also at European and international level – in order to cover the comprehensive range of services, as well as the international nature of the networks and telemedia service providers.

I. Code of Conduct

Section 1: Scope

1. After signature this Code of Conduct shall be legally binding for any FSM member.
2. This Code of Conduct shall apply to the extent to which the telemedia service providers are responsible for the content of the services as provided under the currently applicable statutory regulations in the Federal Republic of Germany.
3. This Code of Conduct shall prevent the provision of impermissible services as provided under Section 2 and ensuring compliance with the provisions under Sections 3 to 12 hereof. Besides those of Sections 9 to 11, no violations of provisions of the Codes and Laws on Advertising, Copyright, Data Protection, Consumer Protection and Competition shall be covered.
4. The tasks of either existing self-monitoring bodies or self-monitoring measures carried out by the individual members of the FSM regarding their services offered shall remain unaffected.
5. As provided under § 11 of the Statutes the members concerned may define complementary sub-codes for individual areas (member groups / issues). In case of doubt the provisions determined under this Code of Conduct shall prevail those defined under any sub-code. The members that would be concerned by such sub-code may submit to the stipulations defined therein.

Section 2: Outlawing child pornography and erotography

The members of the FSM participate in protecting the special dignity of children and youth; they are deeply convinced that the societal problem of child pornography can only be addressed by means of determined outlawing and pursuit. For this purpose the members ban child pornography offers as provided under § 184, StGB [German Penalty Code] and erotography offers of minors and as provided under the Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clause 9. Within the framework of their statutory responsibility they ensure that no such offers are offered or switched for use. Should any member obtain knowledge of child pornography offers in the telemedia, this member shall immediately inform the competent authorities thereof.

Section 3: Completely inadmissible content

Within the framework of their statutory responsibility the members of the FSM ensure that no completely inadmissible content would be offered or switched for use. Such content comprises in particular:

• propagandistic means and features of unconstitutional organisations (German Penalty Code, § 86 a; Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, clause 1 and 2)
• incitement to hatred and violence against segments of the population and "Auschwitz lie" (Holocaust denial) (German Penalty Code, § 130; Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clauses 3 and 4)
• instigation or manipulation to commit criminal offences (German Penalty Code, § 111, 130 a; Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clause 6)
• depictions of violence (German Penalty Code, § 131; Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clause 5)
• child, animal and violence pornography (German Penalty Code, § 184 a ff.; Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clause 10)
• erotographic depictions of minors (Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clause 9)
• contents of war glorification (Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clause 7)
• violation against the right of human dignity (Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clause 8)
• telemedia that are indexed for violation of the provisions under the German Penalty Code and telemedia of same content (Inter-State Agreement on Youth Protection in the Media, § 4, Section 1, Clause 11)

Section 4: Relatively forbidden contents

The members of the FSM shall undertake to ensure that content as provided under the Inter-State Agreement on Youth Protection in the Media, § 4, Section 2, would solely made accessible to adults in closed user groups.

Section 5: Impairment or threat to the welfare of children / youth

1. Within the framework of their statutory responsibility the members of the FSM shall take any preventive measure actually and legally possible and reasonable, to ensure that content which may impair the development or education of youth or children to become self-responsible personalities capable of living in our society (Inter-State Agreement on Youth Protection in the Media, § 5, Section 1) must not be offered or switched for use unless care is taken that children and youth can only to a limited extent become aware of these offers pursuant to the statutory regulations. For this purpose the service providers shall be obliged to
   1. make technical or other arrangements in order to make it impossible for or substantially impede children or youth in the age class concerned to become aware of this offer, or
   2. select certain publication times for their services or make them accessible in a way that children or youth in the age class concerned would not become aware thereof under normal circumstances, or
   3. program these offers for a youth protection program that has been recognized as appropriate or to switch it accordingly.
2. Those who publish telemedia on a commercial basis or to a large extent shall also be obliged to program harmless offers for a recognised youth protection program as far as this is reasonable and feasible and does not incur excessive costs. Members of the FSM intend to apply a positive rating. Those members of the FSM offering services that are suitable for children and fostering their development shall be committed to stress the existence of such offers.
3. If the offer is solely expected to have an impairing impact on the development of children, this offer shall be published and made accessible in separate form from those offers targeted to children. The members of the FSM shall be obliged to avoid introducing any links from offers targeted to children to content that might impair their development.

Section 6: Advertising

The undersigned to this Code of Conduct shall undertake the obligation of refraining from any provision of advertising on their offers that might violate the Inter-State Agreement on Youth Protection in the Media, § 6. Furthermore, the undersigned shall omit using any advertising that might impair the protection of youth. While doing so they shall ensure that the statutory regulations are complied with when using visual advertising, mailings or dialler programs.

Members shall not engage in any of the following activities:

• The use of advertisement that covers or obscures the desired content and is made particularly difficult for children or youth to close by the spawning of new advertising surfaces upon clicking of the close button;
• using dialler programs that automatically install or activate, and are not recognizable, whilst visual advertising appears on the screen.

Section 7: Age verification systems and dialler programs

Those members, the offers of whom must only be accessible via an age verification system, shall use a dialler program against payment to stress that the age of the potential user would be verified after having dialled-in. The members of the FSM shall undertake the obligation to publish information about the age verification system applied on those websites where the dialler programs are offered.

Section 8: Content in style of journalistic reporting

If the services provided by the members of the FSM contain content in the style of journalistic reporting as defined under the Rundfunkstaatsvertrag [German Interstate Broadcasting Treaty], the members shall ensure, within the scope of their legally determined responsibility, that

1. content intended for reporting purposes and containing information services complies with the generally accepted journalistic principles;
2. reports about topical news items are verified by the provider before publication with the appropriate care regarding content, origin and truthfulness;
3. editorial comment is clearly distinguished from news reports, and the author of editorial comment identified as such;
4. a statement is made as to the representativeness of surveys carried out by members of the FSM and quoted in their services.

If generally accepted journalistic principles need to be defined, reference can be made as far as appropriate and comparable, to the Code of Conduct of the German Press Council in its applicable version.

Section 9: Program for the protection of youth

Those undersigned to the Code of Conduct shall ensure, as far as reasonably possible, that a youth protection program complying with the provisions under the Inter-State Agreement on Youth Protection in the Media, § 11, would be developed / updated that is easy to use and accessible to the general public. The members of the FSM shall support an application for recognition of such youth protection program and ensure that such program be introduced to the general public.

The members of the FSM applying a youth protection program (in compliance with the Inter-State Agreement on Youth Protection in the Media, § 11) shall identify their offers accordingly if there is any provision to do so under the youth protection program. As far as a service provider is using a recognized youth protection program it shall indicate such use in its offers. The service providers shall ensure the dissemination of such recognized youth protection program.

Section 10: Compulsory identification in compliance with the Inter-State Agreement on Youth Protection in the Media, § 12

The undersigned shall explicitly emphasize the existence of any identification within their offers in case of telemedia the content of which is completely or substantially identical with recorded DVDs, video tapes or other data carriers (image carriers) that are programmed with films or games and suitable for recording or playing on video terminals which are identified as provided for under the Jugendschutzgesetz [Youth Protection Law], § 12, or open to the corresponding age class.

Section 11: Provider identification

Members of the FSM that act as content providers shall ensure that the statutory regulations for identification of providers are complied with. Members that solely act as switching agents shall ensure, as far as reasonably possible, that the content providers comply with such regulations. The services offered by members of the FSM shall display information on the provider’s FSM membership.

Section 12: Fostering media competency

The members of the FSM shall contribute to fostering media competency and are convinced that solely the interplay of media competency on the user’s side and responsibility shown by each individual service provider as well as the voluntary self-monitoring of the telemedia can ensure a sensible youth protection in the media. Therefore, they engage in supporting the FSM fostering of media competency among parents and children. They shall in particular support the FSM in disseminating information on the safe use of the Internet to children, youth and parents and thus providing assistance in achieving Internet competency.

Section 13: Right to information

The members of the FSM shall provide free access to those offers under their responsibility for purposes of monitoring carried out by the FSM complaint office. The calling or using of offers by the FSM for examining a complaint or in its function as Jugendschutzbeauftragter [Commissioner for the Protection of Youth] to the individual service provider shall be free of charge to the FSM, or the costs incurred shall be reimbursed by the service provider in question. The service provider shall not be entitled to ban the calling or taking notice of any of its offers to impede the examination by the FSM.

II. Sanctions

Should the relevant bodies of the FSM, on the basis of the Complaint Rules adopted by the FSM, determine that a violation against the Code of Conduct has been committed, sanctions may be imposed as provided under the Complaint Rules.

III. Final provisions

The members of the FSM agree to continuously review and update this Code of Conduct and the catalogue of sanctions on the basis of day-to-day practice.

Berlin, 4 May 2004