Online youth protection
In Germany, provisions determining which content is relevant to youth protection law include the German Protection of Young Persons Act (JuSchG) and the German Interstate Treaty on the Protection of Minors in the Media (JMStV). The JMStV places every online provider under a legal obligation to assess itself whether its content is problematic for children or adolescents. This evaluation can often be difficult in practice. The FSM helps companies and providers to comply with the legal youth protection regulations and to evaluate the circumstances as regards legalities and technical and educational issues.
Relevant media content
The JMStV draws a distinction between three different content categories: illegal content, content illegal for minors but legal for adults, and content with a harmful effect on development.
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), like child sexual abuse material or glorification of violence.
Content illegal for minors but legal for adults is material that
- is pornographic in other respects
- evidently poses a serious threat to development, e.g. so-called “pro-ana” and “pro-mia” sites dealing with eating disorders or
- includes content that has been indexed by the German Federal Review Board as being harmful to minors (Lists A and C)
Such telemedia content offers, as covered by Article 4 Para. 2 JMStV, are only illegal for minors. Any provider offering such content must ensure that it can only be accessed by adults (closed user group). This can be done by means of an age verification system.
In Article 5, the German Interstate Treaty on the Protection of Minors in the Media (JMStV) speaks of content that impairs 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.
Further information as regards the classification of content is available at Expert knowledge – content in accordance with the JMStV.
Rating own content
The general principle is that all providers must evaluate their own content, classifying it in terms of potential relevance for youth protection purposes. On the basis of this evaluation, they may offer content that is suitable for children of all ages or suitable for children aged 6 and over without any access restrictions. Likewise, nothing further need be done by providers offering content that is only unsuitable for children (i.e. minors under the age of 14). Such content must, however, be disseminated, or made available on demand, separately from content intended for children (separation requirement: Article 5 Para. 5 JMStV). Providers of content harmful for development (suitable for persons aged 16 and over or 18 and over) must ensure that children and adolescents of the affected age bracket(s) would not normally see or hear such content. The law provides a number of possibilities for age-dependent offers.
It can be difficult to determine the “appropriate” age bracket. With unproblematic content, it will generally be easy. However, when dealing with content that includes such elements as sex or violence, the evaluation process becomes more difficult. In cases of doubt, providers have the option of seeking advice. Commercial providers of content impairing development are legally required to engage a Youth Protection Officer to assist with specialist expertise when needed.
An easy way to determine the appropriate age bracket for an Internet offering is the FSM age classification system. Using an interactive questionnaire, this system makes it simple for anyone to determine whether a website or a part of a website is problematic for younger users. The system also makes it very easy to integrate a technical age label into an offering, making it easier for youth protection filters to evaluate the website correctly. This allows providers of content that is unproblematic for children and adolescents, or even addressed to them, to make sure that such content will not be accidentally blocked by suitably configured youth protection programs.
Offering age-restricted content
Providers must start by evaluating their own content. On the basis of this evaluation, they may offer content that is suitable for children of all ages or suitable for children aged 6 and over. Content falling into this age bracket complies with youth media protection law even though it has not been classified and no other measures have been adopted by the provider. The same also applies to content that is unsuitable for children (minors under the age of 14). In such cases, the content must be disseminated, or made available on demand, separately from content intended for children.
This means that there will generally be an obligation to act in accordance with the JMStV if content is being offered for persons aged 16 and over or 18 and over. This legal obligation to act can be fulfilled in a number of ways:
- using 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
- using other technical methods – e.g. requesting an ID card – to make it difficult to access the content, or
- only making the content available at a time when children and adolescents of the affected age bracket(s) would not normally see or hear it (watershed).
Programming content for a youth protection program involves tagging it with a technical age label.
In the online environment, website users will not normally be able to see such age labels. Instead, the provider records the technical label – i.e. the age-de.xml file – in the root directory of its server. This file contains the age data that youth protection programs will then be able to read. Provided this tagging matches the joint standard age-de.xml, content providers will be in compliance with their legal obligations under the JMStV. Providers have the option of labelling specific subpages and sections of a website, or indeed an entire (sub-)domain, with individual age brackets, thereby ensuring maximum availability for their content, even when youth protection programs have been activated.
To make it easier for providers to determine the age bracket that best suits their content on the one hand, and on the other to create a technical age labelling system that matches the required standard, the FSM provides a free age classification system.
The FSM provides individual consulting and training services that help its members to classify their content. If you are interested, please contact our office.
The JMStV also differentiates content that is illegal for minors (Article 4 Para. 2 Sentence 1 JMStV). According to Article 4 Para. 2 Sentence 2 JMStV, such content is admissible in telemedia if the provider ensures that it is only made accessible to adults. One way for the provider to fulfil the requirements of the JMStV for such a safeguard is an age verification system. Such a system will generally need to consist of two components: first of all, it is necessary for the user to be reliably identified, at which point it is determined whether or not the person in question is of legal age. Given the current state of technology, such a determination can only be made through personal contact (“face-to-face monitoring”). Age verification by purely technical means is also conceivable if it can achieve the same level of reliability as a personal age check (German Federal Supreme Court I ZR 102/05, Kommunikation und Recht, 2008, pp. 361, 365). The second component is authentication at each individual usage: it must always be ensured that the content is only being accessed by the person identified as being of legal age at the first step. The risk of access data being passed on to minors should also be reduced.
The question of whether these requirements are met will always depend on the individual case. In the event of infringements, the state media authorities can impose sanctions upon the provider in question via the German Commission for the Protection of Minors in the Media (KJM), which is authorised by Article 14 Para. 2 JMStV to act on behalf of the state media authorities.
The KJM has reviewed various age verification systems and assessed them as satisfactory.
The FSM has also assessed a large number of age verification systems. Member companies can apply for such an assessment to be carried out by the FSM Expert Evaluator Commission.
Age classification system
Providers of content that is harmful for development must take care to ensure that children and adolescents of the affected age group(s) would not normally see or hear such content. The variant best suited to usage on the Internet is programming for a youth protection program. This means using technical means to apply an age bracket label to content.
To make it easier for providers to create a technical age label that is appropriate for their content and complies the required standard, the FSM provides a free age classification system.
Our age classification system allows providers:
- to assess their website in relation to youth protection law
- to use technical means to label their website in such a way that any youth protection program is able to recognise it correctly
- to check the validity of any existing technical labelling
The relevant age bracket can either be entered directly by the provider or determined by answering an online questionnaire. Prior knowledge of youth protection law is not required.
The question of how to achieve a suitable balance between youth media protection on the one hand and freedom of expression and information on the other is answered entirely differently in the USA, for example, than it is in Germany. But even within the EU, the provisions for online youth protection often vary in key points: in some countries the provisions are very strict, in others there are only rules covering the essential principles, and in still others there are no provisions at all beyond the general binding regulations of the Audiovisual Media Services Directive (AVMSD).
A comprehensive analysis of the existing regulatory models was prepared by scientists from the Hans Bredow Institute for Media Research at the University of Hamburg, the University of Fribourg and the University of Applied Sciences HTW Chur, on commission from the Swiss Federal Council. Two major challenges quickly become apparent: on the one hand, the varying legal provisions create difficulties for providers who want to reach users in a variety of countries; on the other, the majority of countries do not have convergent legal youth protection regulations covering all the currently available audio-visual media.
The use of online content often extends across national borders, one major reason being the global networking of users via social media. This gives the individual access to a virtually infinite amount of media content, while giving providers access to new markets, users and customers. In most cases within the EU, the country of origin principle means providers are not compelled to adhere to a whole variety of youth protection provisions. There are, however, a large number of specific national idiosyncrasies, and apart from anything else, the users are accustomed to these and expect online content providers to adhere to them. Particularly when it comes to fee-based services, customers tend to prefer offers that expressly adhere to national law and offer the “customary” level of protection – especially in respect of services geared towards the whole family and offering a broad spectrum of content.
The FSM offers its members a wide-ranging consulting service dealing with youth protection law issues in many countries. Further information is available under EU & international.