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Federal Agency for Child and Youth Protection in the Media
German federal agency From Wikipedia, the free encyclopedia
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The Federal Agency for Child and Youth Protection in the Media[1] (German: Bundeszentrale für Kinder- und Jugendmedienschutz or BzKJ), known until 2021 as the Federal Review Board for Media Harmful to Young Persons (German: Bundesprüfstelle für jugendgefährdende Medien or BPjM), is a German federal agency whose mission is to examine "media works suspected to be harmful to young people." Based in Bonn, it is part of the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth.
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The agency's main task is to maintain a list of works it has determined to be harmful to children. When a work is judged to be harmful, it is added to the list in a process known as indexing (Indizierung). If a work is indexed, its sale and advertisement may be restricted, among other legal implications.[2]
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Legal basis
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Article 5 of the Basic Law (Grundgezetz), Germany's constitution, guarantees the rights of freedom of expression and artistic freedom. However, these rights are not unlimited; Article 5, Paragraph 2 states that they may be restricted in several cases, including "in provisions for the protection of young persons".[3]
The Basic Law does not specify what standard speech must meet to be considered harmful towards young people. Instead, it is left to the Bundestag to pass laws clarifying when speech meets this standard. The first law to do so, the Law for the Protection of Minors in Public (Gesetz zum Schutze der Jugend in der Öffentlichkeit), was adopted in 1951. Over the decades, the Bundestag has passed new laws updating this standard several times.
The most recent updates came in 2002, with the passage of the Protection of Young Persons Act (Jugendschutzgesetz) and the State Treaty on Media Protection of Young Persons (Jugendmedienschutz-Staatsvertrag). The former regulates freedom of expression in physical media, such as printed works, videos, and CD-ROMs, while the latter regulates broadcasts and virtual media. These two laws provide the legal basis for the actions of the BzKJ.
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History
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The earliest precursor to the BzKJ, the Federal Review Board for Works Harmful to Young Persons (Bundesprüfstelle für jugendgefährdende Schriften, also known as the Bundesprüfstelle) was established on 18 May 1954. The law establishing it, the Law on the Distribution of Works Harmful to Young Persons (Gesetz über die Verbreitung jugendgefährdender Schriften), was controversial: the centre-right CDU/CSU had originally proposed the bill in 1949, but opposition from the centre-left SPD and communist KPD led to a contentious revision process that delayed its passage for years.[4]
The Bundesprüfstelle's first session took place on 9 July 1954. CDU Minister of the Interior Gerhard Schröder had requested the Bundesprüfstelle investigate Il Piccolo Sceriffo, an Italian comic book series, and two editions of the Tarzan comics. Schröder claimed that Il Piccolo Sceriffo was "the result of a degenerate imagination" and "promoted intellectual laziness", and that the Tarzan comics featured a character in a "skimpy fur bikini." The Bundesprüfstelle ultimately decided to ban one edition of Il Piccolo Scerrifo on the grounds of its crude language, graphic violence, and presentations of unjustified attacks against American Indians. However, it chose not to ban the Tarzan comics.[4]
In 1978, the number and type of institutions that could petition the Bundesprüfstelle to request a work be indexed widened considerably.[citation needed] Since then, state- and district-level youth welfare offices have been authorized to submit applications. The number of applications for indexing increased following this change. During the 1980s, heavy-metal music and violent video games emerged as primary areas of concern for the Bundesprüfstelle.[4]
Following the Erfurt massacre, a school shooting in which 17 were killed, the Protection of Young Persons Act (Jugendschutzgesetz) was passed in June 2002 to replace the Law on the Distribution of Works Harmful to Young Persons, as well as several other similar laws. The new law clarified the area over which the Bundesprüfstelle had authority, adding new forms of media such as websites and computer software to its jurisdiction. As a result, the organization's name was changed to the Federal Review Board for Media Harmful to Young Persons (Bundesprüfstelle für jugendgefährdende Medien). As before, state youth protection agenciesand non-governmental youth organizations could request the board examine works they believed to be inappropriate for children.[citation needed] However, works that had already recieved an age restriction rating from the Voluntary Self-Regulation of the Film Industry or the Entertainment Software Self-Regulation Body could no longer be indexed. The new law also required that all media indexed by the Bundesprüfstelle to be automatically de-indexed after 25 years, following a review of the content.[4] Since then, the Jugendschutzgesetz has been amended several times.[citation needed]
In May 2016, SPD Family Minister Manuela Schwesig announced the government's intent to reform the Bundesprüfstelle to better protect children "from the dangers of the World Wide Web".[5] On 1 May 2021, the Jugendschutzgesetz was amended to implement these changes. To reflect its new, broader mandate, the Bundesprüfstelle's name was again changed to the Federal Agency for Child and Youth Protection in the Media.[6] Other amendments to the law required streaming services and online gaming platforms to transparently implement age verification systems.
List of presiding officers
The following persons have served as the presiding officer of the BzKJ and its predecessors:
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Role and responsibilities
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The BzKJ has the following responsibilities:
- placing media harmful to young people under legally-enforceable prohibition, rendering such media as accessible only to adults;
- promoting value-oriented, educational media; and
- encouraging public awareness about media protection for young people.
§ 18 Paragraph 1 of the Youth Protection Act defines "endangering to young people" as that which is harmful "to the development of children or young people or to their education as autonomous and socially-compatible individuals." Media that is "immoral, brutalizing, or which provokes violence, crime or racial hatred" are named as examples.
Under § 15 Paragraph 2 JSchG, certain types of content are subject to restricted distribution by virtue of the law on account of their obvious harm to young people, without the need to add them to the Index. These include:
- content proscribed by the criminal law, such as: Volksverhetzung (incitement to hate or violence against a group of people), instructions on how to commit crime, glorification or trivialization of violence, incitement to racial hatred, and pornography;
- content glorifying war; and
- content depicting minors in an unnatural or harmful situation.
However, as often it may not be immediately apparent whether a particular work has content as described in § 15, 2 JSchG, the Federal Review Board is able to index such media for the purpose of clarification. The Federal Review Board has consequently indexed works which deny the Holocaust—which would be indictable as Volksverhetzung—or which brings the memory of the deceased into disrepute, when the public prosecutor's office was not able to proceed further at that point.
Upon the application (Antrag) of a youth welfare office or at the request of an accredited non-governmental youth organization, the BzKJ examines whether a written work, film, computer game or other media product has content they consider harmful to young persons. If an application is made by a government body, the BzKJ must always examine the media work. If a non-governmental body makes a request, the BzKJ can decide for itself if it needs to take action. No organization or individual other than the prescribed government bodies may make an Antrag. In practice, applications are normally made by the youth welfare offices.
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The indexing process
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The authors, producers, and the rights-holders of the work in question are notified of the application or request for indexing. They have the right to a legal hearing.
The Bundesprüfstelle may not continue with the indexing process if it is one of the following:
- A film has been rated by the Freiwillige Selbstkontrolle der Filmwirtschaft and did not receive an "Adults only" rating.[7]
- A piece of entertainment software has been rated by the Unterhaltungssoftware Selbstkontrolle on or after 1 April 2003.
The decision-making panel
The decision whether a work is harmful to young people is made by the Panel of Twelve, called Zwölfer-Gremium or the Panel of Three, called Dreier-Gremium. On these panels, youth protection agencies, the arts and businesses are represented by honorary assessors. The members of the panel act independently and are not to be directed by their own interests.
The Zwölfer-Gremium consists of the Presiding Officer (or Deputy Presiding Officer) and assessors representing:
- art;
- literature;
- the book trade and publishers;
- the suppliers of videos and the telecommunications industry;
- voluntary-sector youth organizations;
- public-sector youth organizations;
- teaching staff; and
- the churches.
Additionally, three representatives from the ministries responsible for youth protection in the sixteen Bundesländer, who serve in rotation, are part of the panel.
The hearing, in which representatives of the relevant work may participate, is oral and not open to the public. However, the presiding officer can permit third parties to attend the hearing. Similar to court proceedings, transcripts of the hearing are not published. However, written reasons for a decision can be requested by those not involved in the proceedings. The names of the assessors are disclosed to those participating in the proceedings and are also listed in both the transcript and the indexed decision. If individuals not involved in the proceedings request access to the indexed decision, any personal data (of assessors as well as any companies or lawyers involved) will be removed.
The decision to index requires a majority of two thirds of the votes. If this majority is not reached, the indexing is rejected. In the event that the Bundesprüfstelle holds a meeting with the legal quorum of nine people, a qualified majority of seven must vote to index or the application will be rejected.
The Dreier-Gremium has jurisdiction only in cases where harm to young people is obvious. At least one assessor on the panel must be a representative of art, literature, the book trade and publishing, or the video or telecommunications industry. An application for indexing will be accepted only if the panel votes unanimously.
The person responsible for an indexed work can file suit against the decision to index in an administrative court.
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The List of Media Harmful to Young People
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The List of Media Harmful to Young People (colloquially known as the Index) is published only for physical media (those whose content is stored as an object rather than virtually). The list of virtual media is not published to avoid advertising these works. It is technically illegal for third parties to publish the list, and the only sanctioned lists can be found in the official publications of the BzKJ. The lists are published in BzKJ-Aktuell, a quarterly journal available for €14 per issue. Nonetheless, there are numerous lists available on the Internet that reveal which media has been indexed or confiscated.
While the publication of these online lists may contravene legal restrictions, their status under German law has not been conclusively determined in court. Only a small number of them have shut down voluntarily after receiving complaints from a number of non-governmental youth protection associations. As such, it is as yet unknown whether the publication of these lists could be a violation of the Youth Protection Act. If it is not, then a ban on the publication of the lists would not be permitted under Article 5 of the German constitution.
Under the new Youth Protection Act, a decision to index remains valid for 25 years. After that, the work is automatically removed from the Index.[8] If the BzKJ is of the opinion that there is still a risk of harm to young people, it must begin the legal proceedings afresh. After a popular movie has been removed from the index, there is usually a label that has it re-rated by the FSK (which does not rate indexed movies). Most previously indexed movies get an FSK 16 rating. Due to limited commercial demand for older video games, publishers rarely seek re-rating by the USK.
In the event that the material or legal situation changes, the rightsholders for an indexed work can apply for the proceedings to be re-opened under Article 51 of the Verwaltungsverfahrengesetz (the Administrative Proceedings Law) with the aim of removing the work from the list.
The List in detail
The List is subdivided into various sublists, and these in turn are subdivided into various indexes:
Figures for indexed media are from July 2025.[9] Figures for confiscated media are from February 2022.[10]
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Legal consequences
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The legal consequences of a work being listed on the Index are enumerated in § 15 JuSchG:[11]
- It must not be sold, provided or otherwise made accessible to minors.
- It must not be displayed where it can be seen by minors. This would, for example, include playing an indexed video game in the presence of minors (e.g. streaming gameplay of an indexed video game over the Internet).
- It must be sold within a shop in an area accessible only to adults ("under the counter"). In general, selling indexed titles per mail order is illegal, however, it is permissible if the package may be handed over only to a specified adult, who has to present their identification.
- It must not be rented out, except in a shop inaccessible to minors.
- It must not be imported by mail order. In this case, an adult buyer (importer) is not subject to penalties, if they themselves have no intentions of further disseminating it to others or minors.
- It must not be advertised or announced in a place where the announcement or advertisement could be seen by minors.
- If it is for one of the above six causes, production, acquiring, and holding in stores are subject to penalties.
Indexed content of lists A and C can, however, be advertised and sold to adults on the Internet, if it is technically ensured that minors do not have access to the content (closed user groups). Media on lists B and D may be disseminated under the aforementioned conditions, however, they should not be distributed through broadcasting system, including the Internet.
It is a matter of dispute whether criticism or discussion of indexed works is allowed in works that are accessible to young people. Public prosecutors have not been unanimous in this regard, but publishers tend to lean on the side of safety. For example, in the German version of Marc Saltzman's Game Design: Secret of the Sages, the titles of indexed games were replaced by random strings matching only their first letters and lengths.
Pornographic content on the Internet is legal only if technical measures, such as an Age Verification System or an Adult-Check-System, prevent minors from accessing it.[12]
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Criticism
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The BzKJ has drawn criticism for what some see as de facto censorship, paternalism and restricting the freedom of speech and of the press on the following grounds:
- After a work has been indexed, in practice, it also becomes more difficult for adults to get access to it. This is because indexed works must not be advertised and may be sold by mail order only under strict conditions. The sale of such works is therefore often not profitable and the work thus disappears from the market.
- Journalists may carry out self-censorship and choose not to mention the work to avoid possible legal trouble.
- Commentators have noted that Germany’s BzKJ is unique among Western democracies in its scope and structure for regulating youth media protection. Critics of the BzKJ argue that the rationales for earlier decisions to add works to the index are, in retrospect, reactions to moral panics.[citation needed] An example of this is the controversy about the game River Raid.[further explanation needed]
One counter-argument states that the advertising ban on indexed works is not the aim of the decision to index, but its legal consequence. According to the BzKJ, the agency's indexing decisions serve to inform the public about content it considers unsuitable for minors and to encourage debate about media content affecting young people.[citation needed] In practice this debate seldom takes place. One reason for this is the legal uncertainty as to whether a critical discussion of an indexed work is legally permissible or whether it infringes the advertising ban. This can be traced back to the differing positions of various public prosecutor's offices and a clarification of the legal position by law enforcement agencies would consequently be helpful.[citation needed]
The BzKJ is not a unique organization in its purpose; other western countries also have laws and mechanisms, albeit different in scope and practice, to prevent, for example, the sale of pornography to minors, Holocaust denial or racist literature and hate speech.[example needed]
The nature of the BzKJ's judgements has altered over the decades and been modified in accordance with changing public opinion. Decisions to index from the 1950s and 1960s, and indeed those from the early days of computer and video games, are unlikely to be made today. Regardless, many of these decisions are still in effect today. Consequently, the time period of 25 years that media is retained on the index remains controversial.[example needed]
In recent times, it has become more prevalent for digital games on PC to use license keys, while an online activation has to be undertaken to use the license. Many publishers deem it necessary to restrict activation out of Germany for certain games. This leaves German adults without the option to import said games, while consoles do not have those kind of restrictions. So far, importing console games has not led to an incrimination of any publisher. While indexing keeps a larger portion of the German population in ignorance over indexed media, due to the Internet, it is easier than ever for minors to inform themselves about new media which might be indexed in Germany and thus be of more interest to them.[citation needed]
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Other restriction mechanisms
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Indexing is not the only mechanism in use in Germany by which broader circulation of certain media works is prevented. Works may also receive a confiscation order by a court when certain articles of the Strafgesetzbuch apply to them, such as glorification of violence or denial of the Holocaust. Confiscation results in a nationwide ban on its sale even to adults; the mere possession of such material remains legal (with the exception of child pornography and terrorist propaganda, both of which are illegal under international law).
A well-known example of a confiscated work is Wolfenstein 3D, which was confiscated due to the use of Nazi symbols such as Swastikas. Since it was initially not clarified in court whether video games constitute a form of art, the same occurred with later games in the franchise and any other computer game displaying Nazi-related symbols, even including those that portray Nazism in a negative light. These rulings were later loosened in August 2018 as a result of a ruling from April that same year. The web-based game Bundesfighter II Turbo was released prior to the September 2017 elections, which included parodies of the candidates fighting each other. This included the portrayals of Angela Merkel as a reptiloid and Alexander Gauland, who had a special move that involved Swastika imagery. When this was noticed by public authorities, they began the prosecution of the game in December, submitting it to the Public Prosecutor General's office for review based on the Wolfenstein 3D decision. The Attorney General declined to consider the game illegal under Strafgesetzbuch section 86a, stating that the 1998 ruling was outdated. Since then, the USK had adopted age ratings for video games and argued that there was no reason not to consider video games as art within the social adequacy clause.[13] As a result, the Supreme Youth Protection Authority of the Federal States adapted the Attorney General's ruling to be applicable to all video games within Germany and subsequently, the USK announced this change in August 2018. The USK reviews all games to judge if the use of imagery under Section 86a remains within the social adequacy clause and deny ratings to those that fail to meet this allowance.[14]
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Notes
External links
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