Swastikas and censorship? A legal take on the Wolfenstein 2 debate in Germany


January 9, 2018 Leave a comment
The release of Wolfenstein 2 has sparked a heated debate in Germany on the country’s factual ban of swastikas in video games, perceived as being counterproductive in a game depicting the fight against Nazis. Any references to National Socialism have been purged in the localized version: The opponent is called the “regime”, swastikas are banned entirely and instead of Hitler gamers meet “Mr. Heiler”, stripped of the characteristic moustache.

These significant changes to the core of Wolfenstein’s game aesthetics and message are the result of a legal development that began with a court decision against the game’s pre-pre-predecessor “Wolfenstein 3D” back in 1998. An opportunity for us to shed light on the legal background of this situation, which has also led to costly product recalls in the past.

The prohibition of “anti-constitutional symbols” under German law

Two provisions of the German Criminal Code (§§ 86 and 86a) form the starting point of the debate. They prohibit the public use and dissemination of propaganda and symbols of anti-constitutional organisations. Possible penalties are severe, e.g. disseminating symbols of anti-constitutional organisations is punishable by imprisonment of up to three years or a fine. The term “symbol” is very broad and includes flags and insignia, particularly the swastika.

However, this ban is not without exceptions: The use and dissemination of anti-constitutional symbols is permitted for certain privileged purposes, including in particular civil education, art, science, research and teaching as well as reporting on current or historical events. This derogation is based on the constitutionally guaranteed freedom of art, science and the press.

There is a broad consensus, therefore, that Swastika flags may be shown in TV documentaries as these are considered “serving civil education”, “reporting about historical events” and “teaching”. Swastikas are also shown in (fictional) movies where they are obviously regarded as falling under the “art” branch of the exception.

How does this affect computer games?

Should this not be the case of video games as well? So far, the only published court decision regarding this question deals with the game “Wolfenstein 3D” and is almost 20 years old.

“Wolfenstein 3D” had previously already been placed on the “index”, the federal list of youth-endangering media. In its grounds for the decision, the Review Board attached great importance to the fact that the decision was based on the display of violence in the game and not on its use of swastikas and Hitler portraits.

The court’s decision, on the other hand, dealt with the use of swastikas under criminal law. At the time, the judges ruled that swastikas had no place in a computer game. In their very clear words:

Rather, the protective purpose of § 86a StGB (German Criminal Code) calls for symbols of unconstitutional organisations to not be shown in computer games. In this respect it […] does not matter that the prohibited signs and symbols of the game “Wolfenstein 3D” were located in the areas of the game assigned to the enemy. If such a use of prohibited symbols in computer games were permitted, it would hardly be possible to counteract a development towards their increasing use in public, which would run counter to the objective of § 86a StGB.

The ruling does not explicitly address the aforementioned exceptions, which implicitly suggests that the judges did not consider classifying computer games as “art”. Their approach was already widely criticised at the time. Recently, these voices are becoming even louder. In view of the similarities between computer games on the one hand and movies or plays on the other, this unequal treatment is rightly seen as unjustifiable.

Also, the population would acknowledge that the use of National Socialist symbols in games served to realistically depict historical scenarios and could not be deemed propaganda. This is true at least as long as the symbols are only assigned to the opponent and not the player’s characters.

The legal situation is therefore not entirely clear. Games could well be classified as “art” and legally depict swastikas. However, due to the looming criminal consequences, it is not surprising that in case of doubt, publishers opt to modify their games and do not risk prosecuting the matter. In the recent past, at least three separate product recalls made headlines when swastikas were overlooked in German version.

Outlook

Legal experts mostly agree that a case like the “Wolfenstein 3D” case – which had another peculiarity, namely that the accused was a self-identified right-wing extremist – should not have been decided as it was, and that the court likely overlooked the “art” exception. Even if a court in 1998 may have had legitimate doubts in the matter, there cannot be a question in 2018 that computer games are no less an art form than movies, and there is no justification for treating them differently in this respect.

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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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