Germany's approach to protecting minors online

Germany has always been and still is keen to regulate the protection of minors online at a national level as well as by complying with EU-level law. We look at how it is pursuing this and at how Germany's own regime ties in with the EU's.

With the EU's Digital Services Act in full force and national laws evolving, businesses are facing a complex regulatory landscape in relation to online safety. The European Commission is set to release crucial guidelines aiming to harmonise efforts across Member States sometime in the first quarter of 2025. However, as various national legislators rush to implement their own rules, there's a looming risk of a fragmented online experience for users. On top of that, different regulators, authorities, and youth protection agencies fight for the right to have a say. This makes it difficult for pan-EU service offerings and for any online business to comply and this is true, not least for those operating in Germany.

Adding to the complexity, regulation in Germany is split into Federal and State level law. So, for example, on the one hand, there is the Federal Youth Protection Act (the Jugendschutzgesetz or JuSchG); on the other hand, there is State law, the Youth Protection Media Interstate Treaty (the Jugendschutz-Medienstaatsvertrag or JMStV), which is negotiated between all 16 States as legislators.

Businesses and some of the regulators in Germany have criticised the lack of convergence between these two laws. While enforcement in Germany has traditionally been low key, there is a recent trend for a stricter approach.

The JuSchG

The JuSchG was primarily designed to protect children and young people in public. Traditionally, it regulated the sale and consumption of tobacco (now also electronic cigarettes) and alcohol, as well as specific locations, such as entry to nightclubs and bars. The JuSchG also covered media and content distributed on hardware, for example, age ratings and age gating of films and/or computer games if sold on DVD or BluRay.

However, the JuSchG was amended in 2021 with the aim of regulating certain online business models. Since then, the JuSchG has imposed specific obligations on providers of film and gaming platforms as well as host providers. See here for more.

The JMStV

The JMStV is aimed at protecting minors “in broadcasting and online media”. Key aspects of the current JMStV include requirements for content and advertising by online services, implementation of age verification systems and content labelling according to specific age categories.

Some stakeholders questioned the JSMtV’s raison d'être given the JuSchG amendment and extension of scope to online services. These doubts were compounded with the introduction of the EU's Digital Services Act which gave rise to further questions as to whether the JMStV was still required.

The reform of the JMStV and the risk of 'overblocking'

The German State legislators consider the JMStV a necessary instrument for protection of minors, despite the JuSchG’s reformed scope and the arrival of the DSA. As a result, the process of reforming the JMStV has continued. On 12 December 2024, a controversial draft amendment was published. This draft will be signed on 12 March 2025. If it is indeed finalised in its current form, it could potentially enter into force on 1 December 2025.

Many businesses fear massive 'overblocking' due to the JMStV’s new requirements. Based on the draft amendment, key changes will include strict requirements for operating system providers to implement parental control systems based on specific age categories. This will allow parents or guardians to control age-inappropriate content, such as porn, violence, hate speech and misinformation on devices such as smartphones, laptops and PCs at the touch of a button. App providers would also have to include standardised age ratings through automated systems or offer equivalent child protection measures, ensuring compatibility with these parental controls. Content or apps, which are not rated by default, could therefore be blocked. This means there is a real risk of indirect censorship which may result in a lack of media plurality for minors. As a result, many are calling for the European Commission to step in. The legislator’s approach contradicts the goal of promoting a harmonised digital market in all EU Member States.

Complying with a patchwork of laws in Germany and EU

No matter what the future holds, compliance with protection of minors’ requirements is not easy. The new guidance by the European Commission on the Digital Services Act’s “appropriate and proportionate measures to ensure a high level of privacy, safety, and security of minors” will provide some clarity but the updated JMStV is likely to produce more questions than answers. Unfortunately, compliance will continue to be tri-fold in Germany. In addition to the DSA, businesses will need to look at both JuSchG and JMStV, depending on their services. There could also be requirements from other EU Member State law that must be complied with – because online services never stop at geographical borders.