Media content relevant for child protection
Germany has an extremely fine-knit mesh of legal provisions for child protection in the media. The most important of these is the German Interstate Treaty on the Protection of Minors in the Media (JMStV), but the German Interstate Broadcasting Treaty (RStV), the German Protection of Young Persons Act (JuSchG) and the German Criminal Code (StGB) also contain provisions imposing restrictions on providers of electronic media content for youth protection purposes.
The legislature uses a sophisticated system of requirements and prohibitions in response to the challenge of reconciling with each other certain values fundamental to an enlightened society – including freedom of expression and information, the prohibition of censorship, the rights and duties of parents as regards their children’s upbringing and the protection of children and adolescents – in as liberal a manner as possible. The fact that key basic rights may be restricted for youth protection purposes has its foundations in the German constitution:
Article 5 Constitution of the Federal Republic of Germany (Grundgesetz)
(1) Every person shall have the right to freely express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance 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.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.
(3) ...
Content that impairs development
In Article 5, the German Interstate Treaty on the Protection of Minors in the Media speaks of content that is harmful for development. This generally refers to content that is liable to exert a negative influence – one that contradicts the image of humanity embodied in the German constitution – upon the personal development of children and young people. Such content has the potential to hinder, disrupt or set back the development of children and adolescents into responsible, self-determining people able to realise their potential freely within the community. When classifying content, particular weight is given to the extent to which the content may have a disorienting effect upon children and adolescents from various age groups in terms of sexual or social ethics, encourage them to develop positive attitudes towards violence or frighten them excessively. Any provider wishing to disseminate such content on the Internet must ensure that children and adolescents of the affected age bracket(s) would not normally see or hear it. According to Article 5 Para. 3 JMStV, there are various ways for the provider to fulfil this obligation. The provider can, for example
- use technical means to label the content with an age bracket, thereby enabling any youth protection program to recognise it correctly and prevent younger users from accessing unsuitable content, or
- use other technical methods – e.g. requesting an ID card – to make it difficult to access the content, or
- only make the content available at a time when children and adolescents of the affected age bracket(s) would not normally see or hear it (watershed).
The FSM hotline has already dealt with instances of content that is harmful for development. Please visit the download area for practical, real-life examples of decisions taken.
Content illegal for minors
Telemedia content offers falling under Article 4 Para. 2 JMStV are illegal for minors but are legal for adults. Article 4 Para. 2 Sentence 2 JMStV stipulates that any provider offering such content must ensure that it is only made available to adults (closed user group). This can be done by means of an age verification system.
Content illegal for minors is material that
- is pornographic in other respects
- evidently poses a serious threat to development, or
- includes content that has been indexed by the German Federal Review Board as being harmful to minors (Lists A and C)
One example of content that obviously poses a serious threat to development is so-called “pro-ana” and “pro-mia” sites dealing with eating disorders.
Illegal content
Illegal content in accordance with Article 4 Para. 1 JMStV may not be disseminated by providers at all, even to adults. For the most part, this is content the dissemination of which is already prohibited under the German Criminal Code (StGB).
This applies to offers presenting the following content:
This relates to Article 86 and Article 86a of the German Criminal Code (StGB). Article 86 StGB makes it a punishable offence to disseminate propaganda material of unconstitutional organisations. Prohibited organisations are for the most part prohibited parties (the German Communist Party, KPD), their successor organisations and neo-Nazi organisations (the National Socialist Party (NSDAP), Viking Youth, Blood & Honour et al.). Article 86a StGB prohibits using the symbols of these organisations (e.g. the swastika). Also included are slogans (e.g. “Meine Ehre heißt Treue”) and forms of greeting (e.g. “Sieg Heil”).
Content that incites to hatred against parts of the population or against a national, racial, religious or ethnic group, encourages violent or arbitrary action against such a group or violates the human dignity of a person or group by insulting, maliciously degrading or defaming parts of the population or any of the aforementioned groups.
Content that denies or plays down acts committed under the National Socialist regime (genocide or crimes against humanity in accordance with Article 6 Para. 1 and Article 7 Para. 1 of the German International Criminal Code [Völkerstrafgesetzbuch – VStGB]) in a manner liable to disturb public peace (e.g. Holocaust denial, lies about Auschwitz).
This includes the presentation of cruel or otherwise inhuman acts of violence against a person in a manner devised to glorify or trivialise such acts of violence or devised to present the cruel or inhuman nature of the act in a manner which violates human dignity; this also applies to virtual presentations.
The relevant criminal acts are listed in Article 126 Para. 1 StGB, Numbers 1 to 7, and are mostly acts of violence.
Content can be considered to glorify war if the negative consequences of war are not depicted, a certain idealisation occurs and war is depicted as a romantic adventure.
These include the presentation of persons who are or were dying or suffering severely, the voyeuristic presentation of human corpses and in some circumstances, the commercialisation of persons in entertainment shows.
This covers the presentation of minors in sexual poses.
This covers what is categorised in Germany as “hard” pornography. The prohibition on pornography involving children or adolescents refers to the presentation of the sexual abuse of children or adolescents and also covers virtual presentations (e.g. comics, manga). Violent pornographic content is considered to be the presentation of sexually motivated violence within the meaning of Article 184a StGB. Content contains animal pornography if it presents sexual acts between persons and animals.
Part B of the list is public, Part D is not. Both include media content considered by the German Federal Review Board for Media Harmful to Young Persons (BPjM) to contain material designated under Article 86 (dissemination of propaganda material of unconstitutional organisations), Article 130 (incitement of the people), Article 130a (instruction to commit criminal acts), Article 131 (depictions of violence) or Articles 184a and 184b of the StGB. Part B of the list, which is public, appears in BPJM-aktuell, the Board’s periodical.
