Bundesprüfstelle für jugendgefährdende Medien

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The Bundesprüfstelle für jugendgefährdende Medien or BPjM (Federal Department for Media Harmful to Young Persons) is an upper-level German federal agency subordinate to the Federal Ministry for 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.

Contents

[edit] Legal basis

The basic rights 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 honour", "provisions for the protection of young persons" may restrict freedom of expression (Article 5 Paragraph 2) [1].

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 It superseded the Gesetz über die Verbreitung jugendgefährdender Schriften (Law on the Distribution of Writings Harmful to Young Persons) as the legal basis for the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, videos, CD-Roms 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.

[edit] 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. 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 institutions 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 Kreise (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 websites 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.

[edit] 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 JSchG (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:

  • content which is 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 which glorifies war.
  • 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, 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.

[edit] The indexing process

The authors, producers or rights holders 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 Filmwirtschaft (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.

[edit] 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 arts 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 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 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 of nine people, a qualified majority of seven must vote to index or the application will be rejected.

The Dreier-Gremium only has jurisdiction 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 only be accepted if the panel votes unanimously.

The person responsible for an indexed work can file suit against the decision to index in an administrative court.

[edit] The List of Media Harmful to Young People

The List of Media Harmful to Young People (colloquially known as the Index) is only published 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 illegal for third parties to publish the list, so it can only be found in the official publications of the BPjM. The lists are published in BPjM-Aktuell, a quarterly journal which costs 11 Euros per issue.

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 rights holders 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.

[edit] 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 (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.

[edit] Legal consequences

The legal consequences of a work being listed on the Index are enumerated in § 15 Jugendschutzgesetz[2] (law for the protection of minors):

  1. It must not be sold, provided or otherwise made accessible to minors.
  2. 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.
  3. 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 only be handed over to a specified adult person, who has to present ID.
  4. 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.
  5. It must not be imported by mail order. In this case even an adult buyer is subject to penalty.
  6. It must not be advertised or announced in a place where the announcement or advertisement could be seen by minors.
  7. 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 prosecutors 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.

[edit] Criticism

Critics accuse the BPjM of 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, 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 democracy with an organization like the BPjM. The rationales for earlier decisions to index when viewed now, are incomprehensible reactions to moral panics. An example of this is the controversy about the computer game River Raid.

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, except the United States which uses the highly objective Miller Test, which rarely includes any forms of media other than outright pornography.

The nature of the BPjM'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.

[edit] Other Restriction Mechanisms

Indexing is not the only mechanism in use in Germany by which broader circulation of certain media works is prevented. For example, the state of Bavaria claims the copyright to Adolf Hitler's book Mein Kampf and chooses not to grant printing rights to any publisher within Germany. This is not a common way to prevent circulation as most other objectionable media are not copyrighted by any state agency. As the copyright status of the book is disputed, this ban has not proven enforceable outside Germany.

Works can also be confiscated when certain articles of the Strafgesetzbuch apply to them, for example, glorification of violence or denial of the Holocaust. Confiscation, unlike indexing, results in a nationwide ban of the work which includes a ban on its sale to adults. A well-known example of a confiscated work is Wolfenstein 3D, which was confiscated due to the excessive use of Nazi symbols such as swastikas. Use of these symbols in any context other than an educational one is prohibited.

[edit] 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)

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