Technical child protection
Internet content that can be problematic for children and adolescents of a specific age group may, according to the law, only be offered if the provider renders them secure using a technical safeguard. Roughly speaking, the law classifies cases into two groups: particularly serious content, e.g. pornography and extreme violence, must be offered in so-called closed groups, which presents a technical hurdle. In the case of content that is not serious to the same degree but which can still be problematic, providers have three possible ways of complying with the law: technical labels that recognised youth protection programs will then be able to read und interpret, technical means that create access barriers in various ways, or watersheds that make certain content available only after a specific time of day, as is customary in television programming.
Age verification systems (AVS)
Under Article 4 Para. 2 Sentence 2 of the German Interstate Treaty on the Protection of Minors in the Media (JMStV), content illegal for minors (e.g. pornography) is admissible in telemedia if the provider ensures that such content is accessible only 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. An overview can be found here (pdf).
Youth protection programs
Protective software for adolescents or children enables parents, others raising children and others with a legal duty of supervision to control which Internet content is available to children and adolescents. Such software consists of independent filters active only in the end-device (PC, tablet, mobile phone) or home network (via the router).
The German Interstate Treaty on the Protection of Minors in the Media (JMStV) allows providers to disseminate content that impairs development under certain conditions – if, for example, such content has been programmed for a recognised youth protection program (cf. Article 5 Para. 3 No. 1, 11 JMStV), or in other words, provided with technical age labels. These are filter programs that meet particular requirements in terms of their range of functions and capability. Their suitability can be checked and approved by a officially recognised voluntary self-regulation association like the FSM. The FSM proofs the system by means of the law (§ 11 par 1 JMStV) and follows the criteria of the German Commission for the Protection of Minors in the Media (KJM).
What are the recognised youth protection programs?
- the youth protection program of JusProg e. V.
How do youth protection programs work?
A youth protection program generally consists of multiple components:
- blacklist (list of generally inadmissible websites, e.g. the BPjM Module)
- whitelist (list of websites that are generally unproblematic and suitable for children, e.g. fragFINN)
- an extensive list of age-differentiated content (admissibility depends on the age bracket setting in the software)
- the ability to read technical age labels that conform to the common standard (age-de.xml)
The provider records the technical label in the root directory of its server. This contains the age data that youth protection programs will then be able to read. If the user is surfing without an activated youth protection program, the age label will have no effect.
Protect your children online - Parental control software
Video 3:17 min
Technical age labels
Content providers can formulate content that is harmful for development to comply with the law by means of technical age labelling (“Programming for a recognised youth protection program”), cf. Article 5 Para. 3 No. 1, 11 JMStV. The precondition is that the site must be furnished with an appropriate technical label. Such a recognition applies to offers for persons “16 and over or 18 and over”. This regulation does not extend to content covered by Article 4 JMStV (illegal content, such as child sexual abuse material, or content illegal for minors, such adult pornography). As such, recognition of the youth protection program benefits the provider only in relation to content that impairs development within the meaning of Article 5 JMStV.
In the online environment, website users will not normally be able to see age labels. Instead, the provider records the technical label – i.e. the age-de.xml data 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 also provides individual consulting and training services that help its members to classify their content.
Another way for content providers to offer content that is harmful for development legally is to use technical means, cf. Article 5 Para. 3 No. 3 JMStV. This option is not available to providers in respect of content covered by Article 4 JMStV (illegal content, such as child sexual abuse material, or relatively content illegal for minors, such as adult pornography).
Technical means are access barriers that the user must overcome in order to reach the corresponding content. Here, the JMStV does not provide any concrete specifications as to how this hurdle should be formulated, confining itself to setting out the level of protection, stipulating that it must be made impossible or very difficult for children and adolescents to consume the content in question, cf. Article 5 Para. 3 Sentence 1 JMStV. In practice, various approaches to implementing a technical means that satisfies the legal requirements have become established. These include solutions using a PIN, in areas like VOD, and required provision of details from the user’s national ID (known in Germany as “Perso-Check”). Further alternative approaches, such as age verification via webcam, can also count as admissible technical means under JMStV, provided they are implemented in such a way as to guarantee the required level of protection, cf. German Federal Supreme Court I ZR 102/05.
The FSM offers its members the opportunity to have their technical means checked for legal compliance by the FSM Expert Evaluator Commission. It is generally advisable to involve the Expert Evaluator Commission early in the development stage.
Article 5 Para. 3 No. 2 JMStV sets out that another way for providers to offer content that impairs development legally is to incorporate watersheds. The rule here is that content for persons aged 18 and over may not be provided until after 11:00 p.m., and for persons aged 16 and over, not until after 10:00 p.m., cf. Article 5 Para. 4 JMStV. Already customary in television programming, this method is also used online for services such as media libraries.
In the case of content for persons aged 12 and over, the law stipulates that the welfare of younger children must be taken into account in choosing the transmission time. This is not, for example, guaranteed if material aimed explicitly at children, which might perhaps be made available on the website during the afternoon, is followed directly or even interposed with material that would impair development in children under 12 (content for persons aged 12 and over).
This option is not available to providers in respect of content covered by Article 4 JMStV (illegal content, such as child sexual abuse material, or content illegal for minors, such as adult pornography).