Tasks and responsibilities of the Federal Review Board for Media Harmful to Minors
Under the Protection of Young Persons Act (Jugendschutzgesetz - JuSchG), the Federal Review Board has the mission to protect children and adolescents from media contents harmful to minors. In principle, an indexing procedure is carried out upon request by youth authorities (youth welfare offices, ministries for youth affairs), the Commission for the Protection of Minors in the Media or at the urging of all other authorities (e.g. police authorities, customs offices, authorities for the protection of the Constitution or schools).
The Federal Review Board is responsible for examining data media (print media, audio media, image media (films, video games)) as well as telemedia (internet contents). By contrast, the Federal Review Board is not responsible for broadcasting contents (television and radio) as well as films and video games which have been released for a specific age group by the supreme Laender authorities in charge of youth affairs via an organisation of voluntary self-control (Freiwillige Selbstkontrolle der Filmwirtschaft - FSK; Unterhaltungssoftware Selbstkontrolle - USK).
Boards comprising members from various disciplines decide on the imperilling of minors in quasi-judicial proceedings. Within the scope of a non-public hearing, the parties to the proceedings (e.g. publishers, authors, manufacturers, distributors) have the right to be heard and may also obtain legal representation. In case of indexing procedures for websites, an opinion by the Commission for the Protection of Minors in the Media (Kommission für Jugendmedienschutz - KJM) will be requested prior to the meeting, which is to be given the greatest possible respect in the judgement. The KJM supervises the protection of minors in online contexts and proceeds against providers based in Germany in case they violate legal provisions for the protection of minors.
The Board of 12 is the BPjM's central decision-making body and is composed of the chairwoman of the Federal Review Board, eight representatives of socially relevant groups and three representatives of the Federal Laender.
The candidates representing socially relevant groups are nominated by the associations listed in the Protection of Young Persons Act and appointed by the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth. They come from the following groups of society: arts, literature, book trade and publishing industry, providers of image media and telemedia, responsible bodies of voluntary and public youth welfare, teaching staff as well as churches, Jewish and other religious communities.
Media will be included in the List of Media Harmful to Young Persons if two thirds of the Board vote in favour of indexing, taking into account all aspects of the individual case. The parties to the proceedings may appeal the decision of the Board of 12 by being heard by an administrative court.
In cases of an evident imperilling of minors, the BPjM has the opportunity to decide in simplified proceedings via the Board of 3. The simplified proceedings serve to reduce the workload of the Board of 12 in those cases where the Board of 12 would certainly argue in support of an indexing. The Board of 3 has to decide unanimously. Where the required unanimity cannot be reached, or the members of the Board of 3 conclude that the medium in question is not to be included in the List of Media Harmful to Young Persons, the decision will be obtained by the full line-up, meaning the Board of 12.
The legal provision relevant for an indexing is specified in Section 18 (1) of the Protection of Young Persons Act:
“Data media and telemedia which might have a severely damaging impact on the development and education of Children and Adolescents to responsible personalities in society shall be registered by the Review Board and included in a List of Publications Harmful to Young Persons [List].
Included are media and other publications with immoral and brutalising content or those instigating violence, crime and racism and media conveying the following messages:
1. Presentation in detail of acts of violence, murder and massacre for their own purpose.
2. Recommendation of the law of the jungle as the only proven tool by which to obtain supposed justice.“
In addition to minor offences, which are not conclusively specified in Section 18 (1), second sentence, of the Protection of Young Persons Act, further media contents might lead to socio-ethical disorientation of children and adolescents. The BPjM has defined further categories of imperilling of minors, which have been confirmed by court rulings, provided that jurisprudence submitted its comment on it. These include:
· violation of human dignity,
· discrimination against groups of people,
· glorification / trivialisation of National Socialism,
· glorification / trivialisation of drug use,
· glorification / trivialisation of excessive drinking,
· suggestion of self-injurious behaviour (pro-ana/pro-mia, suicide).
Even if the Board has come to the conclusion that the medium in question corresponds to one or several of the aforementioned offences, the outcome of an indexing to be imposed is not yet certain.
Indexing always constitutes an encroachment on specific fundamental rights of the party to the proceedings. However, since the protection of minors has constitutional status as well, meaning it is as significant as other fundamental rights, it has to be considered which of the two is to be given preference in a case of colliding interests. In this respect, the freedom of art, science, research and teaching as well as the freedom of expression and religion have to be particularly considered.
In addition to 'minor' imperilling of minors as explained above, Criminal Code standards authoritative for the protection of minors have also been included in the offence list of the Interstate Treaty on the Protection of Minors in the Media and the Protection of Young Persons Act. Media containing such contents are considered to be severely harmful to minors. Further offences of severe imperilling of minors are constituted in addition to the application of criminal law provisions. Regarding these media contents, the indexing consequences already apply by law. The following offences are thus considered to be severely harmful to minors:
- dissemination of propaganda material of unconstitutional organisations (Section 86 of the German Criminal Code);
- Holocaust denial, incitement to hatred (Section 130 of the German Criminal Code);
- attempt to cause the commission of serious offences (Section 130a of the German Criminal Code);
- depictions of violence that violate human dignity or express glorification of violence (Section 131 of the German Criminal Code);
- pornography (Section 184 (1) of the German Criminal Code);
- pornography depicting violence or sodomy (Section 184a of the German Criminal Code) or child or juvenile pornography (Sections 184b and 184c of the German Criminal Code );
- glorification/trivialisation of war;
- media portraying people who are dying or who are being or have been exposed to severe physical or emotional suffering in a manner that violates human dignity and presenting actual events and developments, although there is no overriding public interest that would justify the choice of such reporting practices;
- presentation of children and adolescents in unnatural, sexually provocative physical postures;
- or media which might have a severely damaging impact on the development and education of children and adolescents to responsible personalities in society.
To avoid ambiguities in trade and distribution, the BPjM also includes media severely harmful to minors in the List upon application or proposal and publishes the listing of data media in the Federal Gazette.
By including them in the List of Media Harmful to Young Persons, data and telemedia are subject to extensive sales and distribution restrictions as well as an advertising ban. However, with a few exceptions, they may still be made available to adults.
Media which have been indexed by the BPjM are generally illegal on the internet. However, specific contents ('minor' imperilling of minors, pornography) are allowed for distribution. This requires the establishment of a so-called 'closed user group' by means of an upstream adult verification system (AVS) preventing the access of minors. According to KJM guidelines, an adult verification system has two verification levels: identification as a person of age as well as authentication with each use.
The KJM takes regulatory measures against providers based in Germany to implement the said guidelines. As the central supervisory board for the internet it decides on measures to be taken in a given case (e.g. objection, prohibition, blocking of providers, fines of up to 500,000 euros). These measures are put into effect by the Supervisory Authorities for Private Broadcasters.
In case of providers resident abroad, however, the legal consequences of indexing websites cannot be regularly enforced by law since they are not subject to German legislation (such as the Protection of Young Persons Act, the German Criminal Code).
The Protection of Young Persons Act specifies that filtering of these indexed foreign websites shall be provided via user-autonomous filter programmes (Section 24 (5) of the Protection of Young Persons Act). To fulfil its legal mandate, the Federal Review Board establishes the BPjM module in cooperation with the German Association for Voluntary Self-Regulation of Digital Media Service Providers (Freiwillige Selbstkontrolle Multimedia-Anbieter - FSM).
The BPjM module registers the indexed URLs disseminated from abroad, though it is no independent filter programme. The module can be integrated as a blacklist into user-autonomous filter programmes. The Federal Review Board provides the module for manufacturers of user-autonomous filter programmes.
Within the scope of a voluntary commitment, the German search engine providers which have teamed up under the auspices of the FSM have agreed upon blocking websites indexed by the Federal Review Board.
The competent public prosecution office will be informed about media under examination which, in addition to their content harmful to minors, also violate specific penal provisions as assessed by the Board (e.g. Section 130 of the German Criminal Code).
However, social life takes place in an increasingly digital and connected world. In particular the real life of children and young people is dramatically changing due to current media developments. Probably even before the emergence of Web 2.0, a paradigm shift occurred, last but not least bringing about a new kind of risks.
Phenomena such as cyberbullying, child grooming and hate speech, but also big data, digital information channels, social media as well as the future development of virtual realities set the benchmark for present, but in particular also for future demands on an effective protection of minors in the media.
The specific demands in that area arise from the conflicting priorities of protecting children and young people by guarding them from these risks and enabling their participation by fostering skills.
The protection of minors in the media in an increasingly digital society cannot provide ultimate security for children and young persons. Nonetheless, it can be shaped in a responsible and sustainable manner on the basis of an overall strategy tailored to specific target groups. Corresponding to the complexity of risks and harmful situations, this ensures an equally complex and intelligent risk management. Pooling proven as well as new approaches yet to be developed, which necessarily provide for regulatory, technical and educational instruments, is required for this purpose. That in turn can only be guaranteed through concerted action by all relevant actors with due regard to their respective competences.
Hence, in line with the BPjM's legal mandate, the department for "Advancement of the Protection of Minors in the Media, Prevention, Public Relations" has the task of elaborating measures to ensure a sustainable protection of minors in the media fit for current and future challenges. To this end, the Federal Review Board promotes a joint exercise of responsibility by the government, industry and civil society. For that purpose, networking structures are established, providing an operational basis to enable those stakeholders to jointly assume their responsibility. The ultimate goal is to develop an overall strategy for an intelligent risk management including the following components:
- information and counselling on contents and phenomena harmful to minors,
- guidance for children and young persons, educators and media education professionals,
- advancement of the technical protection of minors in the media as well as
- precautionary measures for providers.