Evolving standards: Fewer content-based restrictions for video games in Germany


February 4, 2016 Leave a comment
Germany is notorious for its strict and somewhat complicated youth protection legislation. If the age ratings boards refuse a rating for a movie or game, a federal review authority (the BPjM) can step in and impose severe marketing restrictions – referred to as “indexing” – that effectively halt both physical and digital distribution. This year, however, has seen a series of decisions by those federal watchdogs that may indicate a liberalized approach to a number of issues.

Banning became harder…

One well-reported case was the BPjM’s decision not to index the latest instalment of the Mortal Kombat franchise, despite its iconic (and graphic) “finishing moves”. This outcome, which surprised its share of observers, must certainly be explained with a number of individual circumstances and by no means indicates that any level of violence is now fine for the German market.

However, the BPjM did highlight in its decision that the game’s absolutely clear depiction of the events as fictional and fantasy-based allowed players to keep an inner distance to the more gory elements, thus not endangering minors’ sound mental development to a point where restrictions would be justified. And indeed: Many of the characters are fantastic creatures, and even the human-like ones tend to have elemental superpowers.

The case shows that there may now be even more room for argument when defending even graphic media content against restrictions on the German market.

…and un-banning easier

If a game has been included in the list of youth-endangering media, it generally stays there for 25 years. Content owners can however make “un-banning” applications to remove their media from the list faster. Based on the somewhat unclear wording of the relevant statute, BPjM has historically taken the view that such applications were admissible no earlier than 10 years after a game was “indexed”.

However, in a series of decisions in the summer of 2015, BPjM granted unbanning applications for content that had been on the list for only about 6 to 8 years. Restrictions on the concerned open-world games had initially been motivated by the possibility of committing crimes against innocent pedestrians, and by some splatter effects associated with certain powerful weapons used in the games.

The unbanning decisions show that standards regarding such problematic content can change, and that such changes does not necessarily take 10 years either. Unbanning applications can be useful tools in particular for publishers seeking to bring their classic PC and console IPs to mobile devices.

However, some violent content is still viewed with a high degree of caution by the BPjM. In particular, recent decisions have emphasized issues around the use of everyday items as weapons in “survival” games, at least when used against human or human-like opponents. Also, certain politically objectionable content, such as swastikas, remain problematic.

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Felix Hilgert

Felix Hilgert

Senior Associate at Osborne Clarke
Felix is a lawyer with Osborne Clarke's IT Team in Cologne, where he acts for companies of all sizes, from start-ups to market leaders.

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