Bundesprüfstelle für jugendgefährdende Medien
Encyclopedia
The Federal Department for Media Harmful to Young Persons ( or BPjM) is an upper-level German federal agency
subordinate to the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth. It is responsible for examining media
works allegedly harmful to young people and entering these onto an official list — a process known as Indizierung (indexing) in German
. The decision to index a work has a variety of legal implications.
of freedom of expression
and artistic freedom
in Article 5 of the German Grundgesetz
are not guaranteed without limits. Along with the "provisions of general laws and "provisions [...] in the right of personal honor", "provisions for the protection of young persons" may restrict freedom of expression (Article 5 Paragraph 2) http://www.bundestag.de/htdocs_e/info/030gg.pdf.
The Jugendschutzgesetz (Youth Protection Law), which came into effect in April 2003, is one such provision. It superseded the Gesetz über die Verbreitung jugendgefährdender Schriften (Law on the Distribution of Writings Harmful to Young Persons) as the legal basis for the restriction of freedom of expression when applied to physical media (printed works, video
s, CD-ROM
s etc.).
The Jugendmedienschutz-Staatsvertrag (State Treaty on Media Protection of Young Persons) between the different Länder
came into effect on the same day as the Jugendschutzgesetz and regulates the distribution of broadcasts and virtual media. It also provides a legal basis for the actions of the BPjM. It was necessary because certain aspects of broadcasting are regulated by the state governments not the federal government and the treaty ensures uniform treatment across the country.
The first session deciding upon applications requesting the indexing of materials took place on July 9, 1954. The first two works indexed by the BPjS were Tarzan comics
. The rationale for this was that they would affect young people in a "nerve-inflaming and brutalizing way" and "transport them into an unreal world of lies". Such works were supposedly "the result of a degenerate imagination".
In 1978 the number and type of institution
s which could petition for a work to be indexed was widened considerably. Since then, not only the higher authorities with responsibility for young people in the Länder
(states), but also the youth welfare offices of individual Kreis
e (districts) have been authorized to submit applications. The number of applications for indexing has multiplied significantly as a result of this.
Following the Erfurt massacre
(a Columbine
-like shooting at a school in Erfurt
), the Jugendschutzgesetz was passed in June 2002, replacing the Gesetz über die Verbreitung jugendgefährdender Schriften and the Gesetz zum Schutz der Jugend in der Öffentlichkeit (Law for Protection of Young Persons in Public Places). It came into effect on April 1, 2003.
The change in the law clarified the area over which the Bundesprüfstelle had authority. New forms of media such as website
s and computer software were within its jurisdiction. As a result of these new powers the organisation's name was changed to the current Bundesprüfstelle für jugendgefährdende Medien. As previously, an examination order can result from the application of a state youth protection agency or from the request of a non-governmental youth organisation.
For video games, the new law also made the ratings of the USK
compulsory. Games that have been given a rating by this organisation can no longer be put on the index.
§ 18 Paragraph 1 JuSchG (Youth Protection Law) defines jugendgefährdend 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 are "immoral, brutalizing, or which provoke violence, crime or racial hatred
" are named as examples of this.
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:
However, as often it may not be immediately apparent whether a particular work has content as described in § 15, 2 JSchG, the Bundesprüfstelle is able to index such media for the purpose of clarification. The Bundesprüfstelle has consequently indexed works which deny the Holocaust
, which would be indictable as Volksverhetzung or as bringing 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 organisation, the BPjM examines whether a written work, film
, computer game
or other media product has content harmful to young persons. If an application is made by a government body, the BPjM must always examine the media work. If a non-governmental body makes a request, the BPjM can decide 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.
(the film industry body which practises voluntary rating of movies) or the Unterhaltungssoftware Selbstkontrolle
(the software industry body which practises voluntary rating of entertainment software), then the Bundesprüfstelle may not continue with the indexing process.
and business
are represented by honorary assessors. The members of the panel act independently and not as directed by the interests they represent.
The Zwölfer-Gremium consists of:
The hearing, which representatives of the work in question can take part in, is oral and not open to the public. However, the presiding officer can allow third-parties to attend the hearing. As in the courts, transcripts of the hearing are not published, but the written reasons for a decision can also be requested by those not involved in the proceedings. The names of the assessors are disclosed to those involved in the proceedings, and are also listed in both the transcript and the decision to index. If those not involved in the proceedings request the decision to index, any personal data (of assessors and also of any companies or lawyers involved) is 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.
s per issue. Nonetheless, there are numerous lists available on the Internet that reveal which media has been indexed or confiscated.
While these online lists are technically illegal, their right to exist and how the publication has yet been untested in court, as only a small number of them have shut down voluntarily after receiving warnings from a number of non-governmental youth protection associations. As such, it is as yet unknown whether a ban on the publication of these lists could be a violation of the Youth Protection Act. If it is not, then such a ban would not be permitted under article 5 of the German constitution.
Under the new Jugendschutzgesetz, a decision to index remains valid for 25 years. After that, the work must be removed from the Index. If the BPjM is of the opinion that there is still a risk of harm to young people, it must begin the legal proceedings afresh.
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.
Figures are from 2004.
It is a matter of dispute whether criticism or discussion of indexed works is allowed in works that are accessible to young people. Public prosecutor
s have not been unanimous in this regard, but publishers tend to err on the side of safety: In the German version of Marc Saltzman's Game Design: Secret of the Sages, for example, the titles of indexed games were replaced by random strings matching only first letter and length.
Pornographic content on the internet is legal only if technical measures prohibit minors from getting access to the object (AVS = Age Verification System or Adult-Check-System).
censorship
, paternalism
, and restricting the freedom of speech and of the press on the following grounds:
The counter-argument states that the advertising ban on indexed works is not the aim of the decision to index, but its legal consequence. The BPjM sees it as its responsibility to use the decision to index works harmful to young people in order to raise awareness that there is content which is unsuitable and damaging for children and minors. This should consequently encourage public debate about the depiction of violence in the media or about other matters of concern.
However, 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.
The critique that the BPjM is an organisation unique to Germany ignores the fact that 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.
The nature of the BPjMs 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.
when certain articles of the Strafgesetzbuch apply to them, for example, 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
).
A well-known example of a confiscated work is Wolfenstein 3D
, which was confiscated due to the use of Nazi symbols such as swastika
s. Since it has not been clarified in court whether video games constitute a form of art
(like e.g. movies), the same may happen to all its successors and any other computer game displaying Nazi symbols.
Federal agency (Germany)
Federal agencies in Germany are established to assist the country's executive branch on the federal level according to of the Basic Law for the Federal Republic of Germany...
subordinate to the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth. It is responsible for examining media
Mass media
Mass media refers collectively to all media technologies which are intended to reach a large audience via mass communication. Broadcast media transmit their information electronically and comprise of television, film and radio, movies, CDs, DVDs and some other gadgets like cameras or video consoles...
works allegedly harmful to young people and entering these onto an official list — a process known as Indizierung (indexing) in German
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
. The decision to index a work has a variety of legal implications.
Legal basis
The basic rightsRights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
of freedom of expression
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and artistic freedom
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
in Article 5 of the German Grundgesetz
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
are not guaranteed without limits. Along with the "provisions of general laws and "provisions [...] in the right of personal honor", "provisions for the protection of young persons" may restrict freedom of expression (Article 5 Paragraph 2) http://www.bundestag.de/htdocs_e/info/030gg.pdf.
The Jugendschutzgesetz (Youth Protection Law), which came into effect in April 2003, is one such provision. It superseded the Gesetz über die Verbreitung jugendgefährdender Schriften (Law on the Distribution of Writings Harmful to Young Persons) as the legal basis for the restriction of freedom of expression when applied to physical media (printed works, video
Video
Video is the technology of electronically capturing, recording, processing, storing, transmitting, and reconstructing a sequence of still images representing scenes in motion.- History :...
s, CD-ROM
CD-ROM
A CD-ROM is a pre-pressed compact disc that contains data accessible to, but not writable by, a computer for data storage and music playback. The 1985 “Yellow Book” standard developed by Sony and Philips adapted the format to hold any form of binary data....
s etc.).
The Jugendmedienschutz-Staatsvertrag (State Treaty on Media Protection of Young Persons) between the different Länder
States of Germany
Germany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
came into effect on the same day as the Jugendschutzgesetz and regulates the distribution of broadcasts and virtual media. It also provides a legal basis for the actions of the BPjM. It was necessary because certain aspects of broadcasting are regulated by the state governments not the federal government and the treaty ensures uniform treatment across the country.
History
The original Bundesprüfstelle für jugendgefährdende Schriften (Federal Department for Writings Harmful to Young Persons) was established on May 18, 1954, after the Gesetz über die Verbreitung jugendgefährdender Schriften was adopted on June 9, 1953. The presiding officers of the Bundesprüfstelle have been:- Robert Schilling 1954 - 1966
- Werner Jungeblodt 1966 - 1969 (Deputy: Eduard Tack)
- Rudolf Stefen 1969 - 1991 (Deputies: Elke Monssen-Engberding, later Gerhard Adams)
- Since 1991: Elke Monssen-Engberding (Deputies: Dr. Bettina Brockhorst, now Petra Meier)
The first session deciding upon applications requesting the indexing of materials took place on July 9, 1954. The first two works indexed by the BPjS were Tarzan comics
Tarzan (comics)
Tarzan, a fictional character created by Edgar Rice Burroughs, first appeared in the 1912 novel Tarzan of the Apes, and then in 23 sequels. The character proved immensely popular and quickly made the jump to other media, including comics.-Comic strips:...
. The rationale for this was that they would affect young people in a "nerve-inflaming and brutalizing way" and "transport them into an unreal world of lies". Such works were supposedly "the result of a degenerate imagination".
In 1978 the number and type of institution
Institution
An institution is any structure or mechanism of social order and cooperation governing the behavior of a set of individuals within a given human community...
s which could petition for a work to be indexed was widened considerably. Since then, not only the higher authorities with responsibility for young people in the Länder
States of Germany
Germany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
(states), but also the youth welfare offices of individual Kreis
Districts of Germany
The districts of Germany are known as , except in the states of North Rhine-Westphalia and Schleswig-Holstein where they are known simply as ....
e (districts) have been authorized to submit applications. The number of applications for indexing has multiplied significantly as a result of this.
Following the Erfurt massacre
Erfurt massacre
The Erfurt massacre was a school massacre that occurred on April 26, 2002 at the Gutenberg-Gymnasium in Erfurt, Germany. The gunman, 19-year-old expelled student Robert Steinhäuser, shot and killed sixteen people; comprising 13 faculty members, 2 students, and one police officer, before committing...
(a Columbine
Columbine High School massacre
The Columbine High School massacre occurred on Tuesday, April 20, 1999, at Columbine High School in Columbine, an unincorporated area of Jefferson County, Colorado, United States, near Denver and Littleton. Two senior students, Eric Harris and Dylan Klebold, embarked on a massacre, killing 12...
-like shooting at a school in Erfurt
Erfurt
Erfurt is the capital city of Thuringia and the main city nearest to the geographical centre of Germany, located 100 km SW of Leipzig, 150 km N of Nuremberg and 180 km SE of Hannover. Erfurt Airport can be reached by plane via Munich. It lies in the southern part of the Thuringian...
), the Jugendschutzgesetz was passed in June 2002, replacing the Gesetz über die Verbreitung jugendgefährdender Schriften and the Gesetz zum Schutz der Jugend in der Öffentlichkeit (Law for Protection of Young Persons in Public Places). It came into effect on April 1, 2003.
The change in the law clarified the area over which the Bundesprüfstelle had authority. New forms of media such as website
Website
A website, also written as Web site, web site, or simply site, is a collection of related web pages containing images, videos or other digital assets. A website is hosted on at least one web server, accessible via a network such as the Internet or a private local area network through an Internet...
s and computer software were within its jurisdiction. As a result of these new powers the organisation's name was changed to the current Bundesprüfstelle für jugendgefährdende Medien. As previously, an examination order can result from the application of a state youth protection agency or from the request of a non-governmental youth organisation.
For video games, the new law also made the ratings of the USK
Unterhaltungssoftware Selbstkontrolle
Unterhaltungssoftware Selbstkontrolle is the organization responsible for computer game ratings in Germany.- Ratings :...
compulsory. Games that have been given a rating by this organisation can no longer be put on the index.
Role and responsibilities
The BPjM has the following responsibilities:- the placing of media harmful to young people under legally-enforceable prohibition upon the application of ministers for youth and youth welfare offices, so that these media are accessible only to adults but not to children.
- the promotion of media education which promotes human worth.
- the encouragement of public awareness about media protection for young people.
§ 18 Paragraph 1 JuSchG (Youth Protection Law) defines jugendgefährdend 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 are "immoral, brutalizing, or which provoke violence, crime or racial hatred
Racism
Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...
" are named as examples of this.
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 which is proscribed by the criminal lawStrafgesetzbuchStrafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ...
such as VolksverhetzungVolksverhetzungVolksverhetzung is a concept in German criminal law that bans the incitement of hatred against a segment of the population. It often applies in, though it is not limited to, trials relating to Holocaust denial in Germany...
(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 pornographyPornographyPornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
. - content which glorifies warWarWar is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
. - content which depicts minors in an unnatural/harmful situation
However, as often it may not be immediately apparent whether a particular work has content as described in § 15, 2 JSchG, the Bundesprüfstelle is able to index such media for the purpose of clarification. The Bundesprüfstelle has consequently indexed works which deny the Holocaust
Holocaust denial
Holocaust denial is the act of denying the genocide of Jews in World War II, usually referred to as the Holocaust. The key claims of Holocaust denial are: the German Nazi government had no official policy or intention of exterminating Jews, Nazi authorities did not use extermination camps and gas...
, which would be indictable as Volksverhetzung or as bringing the memory of the deceased into disrepute, when the public prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
'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 organisation, the BPjM examines whether a written work, film
Film
A film, also called a movie or motion picture, is a series of still or moving images. It is produced by recording photographic images with cameras, or by creating images using animation techniques or visual effects...
, computer game
Personal computer game
A PC game, also known as a computer game, is a video game played on a personal computer, rather than on a video game console or arcade machine...
or other media product has content harmful to young persons. If an application is made by a government body, the BPjM must always examine the media work. If a non-governmental body makes a request, the BPjM can decide 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.
The indexing process
The authors, producers or rightsholders of the work in question are notified of the application or request for indexing. They have the right to a legal hearing. If a work has received a rating from the Freiwillige Selbstkontrolle der FilmwirtschaftFreiwillige Selbstkontrolle der Filmwirtschaft
The Freiwillige Selbstkontrolle der Filmwirtschaft is a German motion picture rating system organisation run by the Spitzenorganisation der Filmwirtschaft based in Wiesbaden.- Assignment :The main tasks of the FSK are approving and rating movies and trailers, videos and DVDs, and...
(the film industry body which practises voluntary rating of movies) or the Unterhaltungssoftware Selbstkontrolle
Unterhaltungssoftware Selbstkontrolle
Unterhaltungssoftware Selbstkontrolle is the organization responsible for computer game ratings in Germany.- Ratings :...
(the software industry body which practises voluntary rating of entertainment software), then the Bundesprüfstelle may not continue with the indexing process.
The decision-making panel
The decision whether a media work is harmful to young people is taken by the Zwölfer-Gremium (Panel of Twelve) or the Dreier-Gremium (Panel of Three). On these panels, youth protection agencies, the artsThe arts
The arts are a vast subdivision of culture, composed of many creative endeavors and disciplines. It is a broader term than "art", which as a description of a field usually means only the visual arts. The arts encompass visual arts, literary arts and the performing arts – music, theatre, dance and...
and business
Business
A business is an organization engaged in the trade of goods, services, or both to consumers. Businesses are predominant in capitalist economies, where most of them are privately owned and administered to earn profit to increase the wealth of their owners. Businesses may also be not-for-profit...
are represented by honorary assessors. The members of the panel act independently and not as directed by the interests they represent.
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 videoVideoVideo is the technology of electronically capturing, recording, processing, storing, transmitting, and reconstructing a sequence of still images representing scenes in motion.- History :...
s and the telecommunicationsTelecommunicationTelecommunication is the transmission of information over significant distances to communicate. In earlier times, telecommunications involved the use of visual signals, such as beacons, smoke signals, semaphore telegraphs, signal flags, and optical heliographs, or audio messages via coded...
industry - voluntary-sector youth organisations
- public-sector youth organisations
- teaching staff
- the churches
- three representatives from the ministries responsible for youth protection in the sixteen Bundesländer, who serve in rotation.
The hearing, which representatives of the work in question can take part in, is oral and not open to the public. However, the presiding officer can allow third-parties to attend the hearing. As in the courts, transcripts of the hearing are not published, but the written reasons for a decision can also be requested by those not involved in the proceedings. The names of the assessors are disclosed to those involved in the proceedings, and are also listed in both the transcript and the decision to index. If those not involved in the proceedings request the decision to index, any personal data (of assessors and also of any companies or lawyers involved) is 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
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
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.
The List of Media Harmful to Young People
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 so as 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 BPjM. The lists are published in BPjM-Aktuell, a quarterly journal which costs 11 EuroEuro
The euro is the official currency of the eurozone: 17 of the 27 member states of the European Union. It is also the currency used by the Institutions of the European Union. The eurozone consists of Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,...
s per issue. Nonetheless, there are numerous lists available on the Internet that reveal which media has been indexed or confiscated.
While these online lists are technically illegal, their right to exist and how the publication has yet been untested in court, as only a small number of them have shut down voluntarily after receiving warnings from a number of non-governmental youth protection associations. As such, it is as yet unknown whether a ban on the publication of these lists could be a violation of the Youth Protection Act. If it is not, then such a ban would not be permitted under article 5 of the German constitution.
Under the new Jugendschutzgesetz, a decision to index remains valid for 25 years. After that, the work must be removed from the Index. If the BPjM is of the opinion that there is still a risk of harm to young people, it must begin the legal proceedings afresh.
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:| Sublist | Index | |
|---|---|---|
| A, B, E | Under the Jugendschutzgesetz Article 18 Para 2 (1) & (2) | |
Sublist A: Works that are harmful to young people Sublist B: Works whose distribution is prohibited under the Strafgesetzbuch Strafgesetzbuch Strafgesetzbuch is the German name for Penal Code and is abbreviated to StGB.- History :In Germany the Strafgesetzbuch goes back to the Penal Code of the German Empire passed in the year 1871 which was largely identical to the Penal Code of the North German Confederation.This Reichsstrafgesetzbuch ... (German Criminal Code) (in the opinion of the BPjM) Sublist E: Entries prior to April 1 2003 |
||
| 1 | Movies (2858 titles) | |
| 2 | Games (389 titles) | |
| 3 | Printed works (869 titles) | |
| 4 | Audio recordings (368 titles) | |
| C, D | Under the Jugendschutzgesetz Article 18 Para 2 (3) & (4) (unpublished) | |
Sublist C: All indexed virtual works harmful to young people whose distribution is prohibited under Article 4 of the Jugendmedienschutz-Staatsvertrag Sublist D: All indexed virtual works, which potentially have content whose distribution is prohibited under the Strafgesetzbuch. |
||
| 5 | Virtual works (unpublished) (915 titles Correct as of January 2005) | |
| Special digest | Confiscations, where these have been notified to the BPjM | |
| 6 | Confiscations under Articles 86a, 130 & 130a of the Strafgesetzbuch (110 titles) | |
| 7 | Confiscations under Article 131 of the Strafgesetzbuch (240 titles) | |
| 8 | Confiscations under Article 184 III (or, since April 1 2004, Articles 184a & 184b) of the Strafgesetzbuch (182 titles) | |
| 9 | Confiscations under Articles 185 & 187 of the Strafgesetzbuch (2 titles) | |
| Special digest | Planned indexations/current indexations (physical works) | |
| 11 | Planned indexations of physical works | |
| 10 | Current indexations of physical works (works indexed in the same month that the current issue of BPjM-Aktuell was released) | |
Figures are from 2004.
Legal consequences
The legal consequences of a work being listed on the Index are enumerated in § 15 Jugendschutzgesetzhttp://www.medienzensur.de/seite/gesetze/para15abs1juschg.shtml (law for the protection of minors):- 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 game in the presence of minors.
- It must be sold only within a shop. Basically selling indexed titles per mail order is illegal, however it is permissible if the package may be handed over only to a specified adult person, who has to present ID.
- It must not be rented out, except in a shop inaccessible to minors. This is why most video rentals in Germany are not accessible for minors - otherwise they would not be allowed to rent out certain horror (and adult) films.
- It must not be imported by mail order. In this case even an adult buyer is subject to penalty.
- 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 store are subject to penalty too.
It is a matter of dispute whether criticism or discussion of indexed works is allowed in works that are accessible to young people. Public prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
s have not been unanimous in this regard, but publishers tend to err on the side of safety: In the German version of Marc Saltzman's Game Design: Secret of the Sages, for example, the titles of indexed games were replaced by random strings matching only first letter and length.
Pornographic content on the internet is legal only if technical measures prohibit minors from getting access to the object (AVS = Age Verification System or Adult-Check-System).
Criticism
Critics accuse the BPjM of de factoDe facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
censorship
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
, paternalism
Paternalism
Paternalism refers to attitudes or states of affairs that exemplify a traditional relationship between father and child. Two conditions of paternalism are usually identified: interference with liberty and a beneficent intention towards those whose liberty is interfered with...
, 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, as 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.
- Germany is the only western democracyDemocracyDemocracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
with an organization like the BPjM. The rationales for earlier decisions to add works to the index are, in retrospect, incomprehensible reactions to moral panicMoral panicA moral panic is the intensity of feeling expressed in a population about an issue that appears to threaten the social order. According to Stanley Cohen, author of Folk Devils and Moral Panics and credited creator of the term, a moral panic occurs when "[a] condition, episode, person or group of...
s. An example of this is the controversy about the computer game River RaidRiver RaidRiver Raid is a scrolling shooter videogame and was released in 1982 by Activision for the Atari 2600, and later the Atari 5200, Atari 8-bit, C64, ColecoVision, IBM PCjr, Intellivision, ZX Spectrum, and MSX...
.
The counter-argument states that the advertising ban on indexed works is not the aim of the decision to index, but its legal consequence. The BPjM sees it as its responsibility to use the decision to index works harmful to young people in order to raise awareness that there is content which is unsuitable and damaging for children and minors. This should consequently encourage public debate about the depiction of violence in the media or about other matters of concern.
However, 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.
The critique that the BPjM is an organisation unique to Germany ignores the fact that 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.
The nature of the BPjMs 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.
Other restriction mechanisms
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 courtCourt
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
when certain articles of the Strafgesetzbuch apply to them, for example, glorification of violence or denial of the Holocaust
The Holocaust
The Holocaust , also known as the Shoah , was the genocide of approximately six million European Jews and millions of others during World War II, a programme of systematic state-sponsored murder by Nazi...
. 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
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
).
A well-known example of a confiscated work is Wolfenstein 3D
Wolfenstein 3D
Wolfenstein 3D is a video game that is generally regarded by critics and gaming journalists as having both popularized the first-person shooter genre on the PC and created the basic archetype upon which all subsequent games of the same genre would be built. It was created by id Software and...
, which was confiscated due to the use of Nazi symbols such as swastika
Swastika
The swastika is an equilateral cross with its arms bent at right angles, in either right-facing form in counter clock motion or its mirrored left-facing form in clock motion. Earliest archaeological evidence of swastika-shaped ornaments dates back to the Indus Valley Civilization of Ancient...
s. Since it has not been clarified in court whether video games constitute a form of art
Art
Art is the product or process of deliberately arranging items in a way that influences and affects one or more of the senses, emotions, and intellect....
(like e.g. movies), the same may happen to all its successors and any other computer game displaying Nazi symbols.
Sources
This article is primarily a translation of the equivalent German-language article as of September 1, 2005. That article lists the following source: -- BPjM-Aktuell, Amtliches Mitteilungsblatt der Bundesprüstelle für jugendgefährdende Medien (BPjM), ISSN 1611-3608 (print edition), ISSN 1611-3606 (digital edition)
English
German
- Official website of the Bundesprüfstelle für jugendgefährdende Medien
- Das saubere Dutzend: Report on the Zwölfer-Gremium from Süddeutsche ZeitungSüddeutsche ZeitungThe Süddeutsche Zeitung , published in Munich, is the largest German national subscription daily newspaper.-Profile:The title literally translates as "South German Newspaper". It is read throughout Germany by 1.1 million readers daily and boasts a relatively high circulation abroad...
on June 23, 2004 - 50 Jahre gegen "Schmutz und Schund": Report on the 50th anniversary of the BPjM from TelepolisTelepolisTelepolis is the name of a German Internet magazine, published by the Heinz Heise Verlag since the beginning of 1996. It was founded by journalists Armin Medosch and Florian Rötzer and deals with privacy, science, culture, internet-related and general politics and media.Telepolis received the...
on May 10, 2004 - Computer sind Waffen: Part 1 of a two-part report on the work of the then BPjS from TelepolisTelepolisTelepolis is the name of a German Internet magazine, published by the Heinz Heise Verlag since the beginning of 1996. It was founded by journalists Armin Medosch and Florian Rötzer and deals with privacy, science, culture, internet-related and general politics and media.Telepolis received the...
on October 30 - Kinder sind Pornos: Part 2 of a two-part report on the work of the then BPjS from TelepolisTelepolisTelepolis is the name of a German Internet magazine, published by the Heinz Heise Verlag since the beginning of 1996. It was founded by journalists Armin Medosch and Florian Rötzer and deals with privacy, science, culture, internet-related and general politics and media.Telepolis received the...
on November 1, 2000