Germany is one of the largest gaming markets and therefore interesting for organizing eSports events and other publicly shown game presentations, exhibitions or roadshows. However, Germany is also notorious for its strict, complicated and overregulated youth protection laws. This makes it particularly difficult to organize public gaming events for games which tend more towards an older audience, especially those which received a 16+ or 18+ rating or which have not been age-rated at all. This article explains the legal standards that apply and requirements that must be met.
I. Applicable laws
Applicable laws are the German Youth Protection Act (“JuSchG”) and the Interstate Treaty on the Protection of Human Dignity and the Protection of Minors in Broadcasting and in Telemedia (Interstate Treaty on the protection of minors – “JMStV”).
II. Arena events and public viewing
The main part of each eSport or other gaming event is typically held within an arena or through some form of public viewing where spectators follow the event on large screens. It must be differentiated between games played on physical media or devices (1.) and online games (2.).
1. Games played on physical media or devices
Games played on physical media or devices refers to games which are played, for instance, via Blu-ray, DVD, CD-ROM or that are pre-installed on a PC, tablet, console, smartphone or laptop. This does not apply, however, if a physical game version is streamed via the internet (e.g. if a livestream of a pre-installed PC game is shown on the arena screen; see below for this category). Applicable rule to games played on physical media or devices is mainly Sec. 11 JuSchG. This might be surprising as Sec. 11 regulates “movie performances”. However, a movie performance is any visual perceivable presentation of moving images. This also applies to video games. Furthermore, the provision applies “independent of techniques of recording and reproduction” (Sec. 11 (4) JuSchG). It should also be noted that the size of the screen is not relevant (e.g. a game which is shown on a small screen in a publicly accessible presentation room).
The relevant youth protection requirements that must be satisfied are set out in Sec. 11 (1) JuSchG: "Presence of Children and Adolescents at public movie performances shall not be permissible unless the films shown have been cleared for them by the [USK]”. In simply words, only minors who have reached the required age may visit the event. Thus, if the played game has been rated 16+ or 18+ by the USK, only persons older than 16 or 18 may be granted accesses. If the game has not yet been rated by the USK, it is considered as not having been cleared for minors with the consequence that only adults may be granted access to the event (even if the played game is clearly a game for children). Additional restrictions apply to certain age groups depending on the time the event ends (Sec. 11 (3) JuSchG):
“Presence at public movie performances shall be solely permitted with parental guidance. […] This restriction shall apply to the following situations:
1. Children below the age of six years;
2. Children as of six years at performances finished later than 8 p.m.;
3. Adolescents below the age of 16 years at performances finished after 10 p.m.;
4. Adolescents as of 16 years at performances lasting beyond midnight.”
b. Indication of age-ratings
The event organizer is obliged to indicate the relevant age-rating of the played games in a clearly visible and easily readable manner (Sec. 3 (1) JuSchG). To comply with this obligation, the organizer may only use the age-rating description as set out in Sec. 14 (2) JuSchG. However, abbreviations are permitted, such as “no age restriction” (ohne Altersbeschränkung), “rated 6” (ab 6), “rated 12” (ab 12), rated 16 (ab 16) and “rated 18” (ab 18). If the game has not been rated the applicable age is 18 (see above). While the letter of the law does not provide that an age-rating must be indicated if the game has not been rated this is nevertheless recommended and also market practice. The rating that should be indicated in this case is "18" (ab 18). The latter also applies if the game is aimed at children.
Violations of the requirement not to allow minors who have not reached the required age access to an event can entail fines of up to EUR 50.000 imposed to the individual in charge and (additionally) the company. The same applies to a violation of the requirement to indicate the age-rating properly. Additionally, violations of youth protection laws can be made subject to cease and desist claims based on unfair competition law raised by competitors and/or consumer protection associations.
2. Online games
Different rules apply to public events where online games are played or livestreams are shown. This does not apply to downloadable games which have been pre-installed on a device such as a PC, console, tablet, etc. (please see the former section in this regard). In this context, an online game is a game which is completely played online. This typically concerns only smaller games such as browser or social games which are usually not subject to larger arena events etc. However, the same regulations as to online games also apply to livestreams of all other sorts of games, including their physical versions (e.g. a livestream of a pre-installed PC game which is shown on the arena screen).
The relevant youth protection requirements that must be satisfied are set out in Sec. 5 JMStV: “Providers transmitting or making accessible content suited to impair the development of children or adolescents into self-responsible and socially competent personalities shall ensure that children or adolescents of the relevant age groups do not normally see or hear such content.”
While the wording is different to the law applying to events with physical media (see above), generally the same consequences apply: The provider must ensure that minors who have not reached the required age may not be granted access to the event. Where the game has been rated by the USK, the relevant USK rating applies to the online version as well (Sec. 5 (2) sentence 1JMStV). However, an important difference exists in relation to content which has not been rated by the USK. In contrast to events with physical media and devices, the showing of unrated online content does not automatically exclude minors from visiting the event. The JMStV provides a self-regulatory regime. Thus, providers are eligible to self-rate online content, with the risk of false assessment lying with them. Hence, if the game has not been rated, the provider should carefully assess for which age group the game is suitable. Applicable ratings are 0, 6, 12, 16 and 18 (Sec. 5 (1) sentence 2 JMStV). The process of self-rating can also be outsourced to youth protection experts or a certified self-control organization such as USK.online (which from a legal perspective may not be confused with the USK despite both organizations residing under the same roof). Once the game has been self-rated, corresponding age controls can be established for the event.
b. Indication of age-ratings
If the game has been rated by the USK, the relevant age-rating must be indicated by means of a clear reference (Sec. 12 JMStV). Whether the official USK pictograms must be used is subject to a legal debate. The legislative material suggest otherwise. However, to be on the safe side it is recommended to use the official pictograms.
If the game has not been rated by the USK and instead self-rated by the organizer (including outsourced self-ratings by a youth protection experts or USK.online) it is subject to a legal debate whether there is a legal obligation to indicate age-ratings. Again, to be on the safe side it is recommended to simply indicate the relevant self-rating (6, 12, 16 or 18). It should be noted that the official USK pictograms cannot be used to indicate self-ratings (including self-ratings by USK.online).
Violations of the requirement not to make unsuitable content accessible to minors can entail fines of up to EUR 500.000 imposed to the individual in charge and (additionally) the company. However, fines imposed in practice are typically much lower. The same fines apply to a violation of the requirement to indicate the age rating properly, but only in case the game has been rated by the USK. In case self-ratings are not indicated, no fines can be applied. However, violations of youth protection laws can also be made subject to cease and desist claims based on unfair competition law raised by competitors and/or consumer protection associations.
III. Livestreams and TV broadcasts of public gaming events
Larger public gaming events are typically also livestreamed via the internet and/or broadcasted via TV, allowing gamers to follow the event from their homes and private devices. For livestreams and TV broadcasts the same regulations and requirements apply as to public livestreams or online-games (see above II.2). Thus, the provider must ensure that minors cannot access content unsuitable for them. However, given the different setup (home PC or TV instead of arena or public screen), it goes without saying that different age-gating measures must be implemented. Instead of door controls, technical and other youth protection measures must be installed.
Linear TV broadcasters must schedule the broadcast in accordance with the relevant age-rating or self-rating. If the game is not suitable for minors under 16, the event may only be broadcasted between 10pm and 6am, if the game is not suitable for minors at all (i.e. 18+), the event may only be broadcasted between 11pm and 6am. Games which are suitable for minors under the age of 12 must be assessed on a case-by-case basis, and can either be broadcasted during the entire day or between 8pm and 6am.
Livestreams provided via a website can best be age-gated by simply implementing a file called age-de.xml to the website which is set to the relevant age-group (so called age-gating by youth protection filter design). The implementation can typically be taken care of by any website administrator. Detailed information are provided on www.age-label.com, including comprehensive implementation guides. Installing the age-de.xml file provides by far the best user experience and highest level of compliance. Additionally, only those users who have installed a youth protection filter on their system which is set to a lower age than required by the implemented age-de.xml file will not be able to access the website (in practice this number amounts to almost zero). However, age-gating by youth protection filter design is more complicated (but not impossible) in relation to apps or closed hardware systems such as consoles (i.e. in case the livestream is also transmitted via these systems). Other age-gating options are, inter alia, ID check or (arguably) credit card number verification. Theoretically, the livestream can also be scheduled the same way as a linear TV broadcast (see above).
2. Indication of age-ratings
See II.2.b above.
See II.2.c above.
IV. Public exhibition of ready-to-play games and devices
Last, the requirements to publicly exhibit ready-to-play games for marketing and sale purposes shall be discussed. This section does not fully apply to the exhibition of games at the Gamescom due some stricter self-imposed rules. However, for all other presentations, roadshows or exhibitions via brick and mortar stores, shopping malls and other public places the following rules apply:
1. Gaming rooms
“Rooms” which only serve the purpose of enabling people to play games may not be accessed by minors at all (Sec. 6 (1) JuSchG). The prohibition must be interpreted in light of classic arcades and gaming halls. Thus, it does not apply to rooms which are also used for other purposes than gaming, e.g. the overall presentation of a new product, stores and other sale related rooms.
2. Games played on physical media or devices
In relation to all other setups that are not gaming rooms, it must again be differentiated between online games and games played on physical media or devices. The latter again refers to all games that are played, for instance, via Blu-ray, DVD, CD-ROM or which are pre-installed on a PC, tablet, console, smartphone or laptop. This does not apply to games which are exclusively played online (e.g. browser games).
a. Supervised public areas (e.g. stores, exhibitions, roadshows with present staff)
The relevant youth protection requirements that must be satisfied are set out in Sec. 13 (1) JuSchG: “The playing on electronic game monitors […], installed in public areas, may only be permitted to children and adolescents who are not accompanied by a custodial person or person with parental power if the played programs have been [rated for the relevant age group by the USK] and have been properly labelled.” Again, this means that only minors of the required age are allowed to play. Thus, if the exhibited game has been rated 16+ or 18+ by the USK, only persons older than 16 or 18 may play it. If the game has not been rated it must be considered as not having been cleared for minors by the USK. Hence, minors cannot be allowed to to play the game, even if it is clearly a game for kids.
An important exemption applies in case the minor is accompanied by a custodial person or person with parental power. In this case minors can be allowed to play any game, even 18+ and unrated games. This might be surprising as similar exemptions for public events etc. do not exists. This rule has therefore been criticized by legal scholars and youth protection experts. Nevertheless, the provision has not been amended until today and still applies. However, a minor can only be considered as accompanied if the parental guardian is permanently present and is able to oversee the minor. This would not be the case, for instance, where the parental guardian plays on another device.
Compliance with the requirement that only minors who have reached the required age can play the game can typically by reached by having staff present who supervise the area (e.g. sales persons or exhibition staff). However, “playing” also comprises potential spectators. Thus, if the game is not rated or only rated for older age-groups it must also be prevented that (unaccompanied) minors can watch other people play. This can be done, for instance, by exhibiting the game only in specific areas or rooms, supervising lines, by installing sight protection or adjusting the angle the game is set up, etc.
b. Non-supervised public areas (e.g. hall ways or other unattended areas)
In case the game is set up in unattended area different, stricter rules apply. Set up game devices may only feature games which have been rated 6+ or lower by the USK. According to Sec. 13 (2) JuSchG this applies to (1.) public areas accessible for children and adolescents, (2.) the outside area of business spaces and (3.) unguarded entrance halls, lobbies or corridors
c. Indication of age-ratings
In both cases, i.e. game devices set up in supervised and non-supervised areas, the age-rating of the relevant game must be adequately indicated. This requires a clearly visible label on the front of the gaming device / gaming station. The official USK pictogram must be used. The label must at least be 1,200 mm² large. If the game device itself cannot be labeled (e.g. because it is too small), the age-rating should be indicated clearly visible next to the device or entrance to the exhibition area. As a (low) risk-based approach the age-rating can also be indicated digitally via the screen of the device (e.g. when the game is started). The law is silent in relation to the labeling requirements of unrated games. Still, it recommended to label the game device / gaming station with “18” (ab 18) to be on the safe side (but not by using the official USK pictogram).
Violations of the above mentioned requirements can entail fines of up to EUR 50.000 imposed to the individual in charge and (additionally) the company. This includes a violation of the requirement to indicate the age rating properly. Additionally, violations of youth protection laws can be made subject to cease and desist claims based on unfair competition law raised by competitors and/or consumer protection associations.
3. Online games
In case the organizer would like to exhibit online games (i.e. games which are not pre-installed on any device and which are only played online such as browser games), the same rules apply as set out under III. (including labeling requirements and sanctions).