With the reformed Youth Protection Act that came into force last year, the federal government wants to give minors more comprehensive protection from the dangers posed by the internet. We will now see just how supervisory authorities and courts interpret these new obligations. In addition, the Federal States also want to strengthen the protection of minors on the internet even further by amending the Interstate Treaty on the Protection of Minors in the Media. 2022 therefore promises to be an eventful year for the protection of minors in Germany.
The new Youth Protection Act (“JuSchG”) provides for extensive obligations for telemedia providers, the practicality of which still has to be put to the test. An amendment of the Interstate Treaty on the Protection of Minors in the Media (“JMStV”) by the Federal States is also already underway and could gain momentum in 2022.
The German law for the protection of minors consists of the regulations of the JMStV and the JuSchG. Since its amendment last year, the JuSchG, which falls under the jurisdiction of the federal government, is no longer only applicable to so-called carrier media, such as CDs, but now also imposes obligations on providers of telemedia, i.e. in particular providers of online video and games platforms. The JMStV, which falls under the jurisdiction of the federal states, has always contained regulations on so-called broadcasting and telemedia, i.e. especially internet services, but is now to be comprehensively expanded.
The reformed JuSchG, which came into force on 1 May 2021, has extended the scope of the law to the internet and introduced an extended set of obligations for providers of telemedia:
In particular, the provisions of the Youth Protection Act are no longer only relevant for providers of carrier media, but also for providers of telemedia. The provisions of the JuSchG can therefore now also apply to providers of online video, music or gaming services. Providers of social networks, chat rooms or dating platforms should also be aware of the provisions of the JuSchG.
In addition, when assigning age ratings, not only pure content is now taken into account, but also so-called interaction risks. This innovation is intended to protect children from hidden cost traps on the one hand and from cyberbullying and cybergrooming on the other. For example, since May 2021, an online game may be unsuitable for children even though it does not contain any violent or sexual depictions. This is because the mere possibility for minors to communicate with other players or to book paid services without protective devices can now theoretically lead to a game being classified as unsuitable for children. In particular, providers of services that allow communication with other users or in-app purchases should check for any risks for children.
Movie and video game platform providers must also now ensure that all content distributed through their digital distribution platform has gone through an official age rating process.
In addition, the new JuSchG obliges providers of telemedia to ensure the protection of minors in their service by implementing precautionary measures listed by way of example. One such precautionary measure can be, for example, the establishment of default settings that protect minors from interaction risks (e.g. no possibility to chat with other users) and which can only be changed by parents. The use of general terms and conditions in child-friendly language and presentation or the establishment of a child-friendly help and complaints system are also listed as possible precautionary measures in the law.
The previous Federal Review Board for Media Harmful to Young Persons was re-named the Federal Centre for the Protection of Children and Young People in the Media as a result of the amendment to the JuSchG.
The amendment of the JMStV has already been discussed among the federal states for some time. A first working draft of the JMStV from 2020 provides for two fundamental changes in particular.
On the one hand, the draft provides for regulating not only providers of content, but in particular also manufacturers of operating systems that enable access to the internet. According to the working draft, manufacturers of operating systems are to provide for so-called “technical programmes”. Among other things, these programmes should set the default age to “under 18”, unless the user has proven a higher age. In addition, parents should be able to set a younger age of the child on the level of the operating system. Besides, manufacturers of operating systems should block offers that are unsuitable for children and provide software interfaces that enable anonymised communication of the user’s age between the operating system and online services.
On the other hand, the draft now also provides for the regulation of participating entities with company headquarters outside of Germany. This departure from the country of origin principle has already met with widespread criticism. An implementation of this amendment would comprehensively expand the territorial scope of application of the JMStV and encompass numerous companies outside of Germany under the regulatory regime of the JMStV.
The year 2021 ended with a bang in German youth protection law: On 30 November 2021, the Düsseldorf Administrative Court rejected the applications for interim legal protection of the three porn platforms Pornhub, Youporn and Mydirtyhobby. With the applications, the platforms had tried to defend themselves against the previously ordered prohibition of the platforms by the State Media Authority NRW. The authority is of the opinion that the platforms‘ offerings violate the regulations of the JMStV because none of the platforms verifies the age of their users and their contents are thus available to all users without restriction. Furthermore, the regulations of the JMStV also apply to the platforms operating from Cyprus, the country of origin principle cannot be held against the provisions of the German JMStV. In particular, the reasoning of the Düsseldorf Administrative Court on the country of origin principle is likely to further fuel the debate surrounding a corresponding amendment to the JMStV.
It remains to be seen how the website operators will react to the decisions. The platforms may appeal against the decisions.
2022 will show in particular how supervisory authorities will interpret and, if necessary, enforce the new obligations under the JuSchG. Above all, the inclusion of so-called interaction risks in the assessment of the age rating represents a fundamental innovation and needs to be shaped by supervisory authorities. The precautionary measures, which are only listed as examples, also offer some creative leeway for telemedia providers. A practical guideline could counteract the current legal uncertainty among telemedia providers.
It also remains to be seen whether the tug-of-war between the federal states over the amendment of the JMStV will come to an end in 2022 and whether an updated JMStV will ultimately be concluded. The working draft of the JMStV from 2020 still raises many questions regarding practical feasibility. It will be particularly interesting to see which obligations will actually find their way into the new JMStV and which entities the JMStV will seek to regulate in the future. In any case, both telemedia providers and manufacturers of operating systems should keep an eye on the developments surrounding the JMStV.
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