I.            Facts

During the last 18 months a significant change of the regulatory practice in relation to Japanese anime games featuring so called “fan service” (ファンサービス / fan sābisu) took place in Germany. Five games were refused classification by the German Age Rating board (“USK”): Criminal Girls 2, Valkyrie Drive: Bhikkhuni, Senran Kagura: Peach Beach Splash, Gal*Gun 2, and Omega Labyrinth Z. Only one game received a rating after the initial refusal decision was challenged (Senran Kagura: Peach Beach Splash – final rating: 18+). Additionally, one anime episode of the show “My Girlfriend is a Shobitch” was refused classification by the German Film Rating Board (“FSK”). Earlier predecessors of these franchises received a lower 16+ or even 12+ rating. On March 29, 2018 the German Federal Review Board for Media Harmful to Minors (“BPjM”) announced that the first game was now also added to the German blacklist of media harmful to minors (Criminal Girls 2). In most of the other jurisdictions the relevant games did not encounter problems and passed the classification process successfully (e.g. all games received a PEGI 16+ in the rest of Europe and - to the extent they have already been rated - an M+ rating in the USA/Canada). However, some jurisdictions apply a similar strict line as Germany such as Australia, New Zealand and recently the UK and Ireland (the latter two only in one case so far).

II.           Legal reasons

The games were refused classification for reasons of Sec. 15 (2) No. 4 Youth Protection Act (“JuSchG”) according to which “Media presenting Children and Adolescents in unnatural, sexually provocative physical postures” is considered as significantly harmful to minors. Physical media falling under Sec. 15 (2) No. 4 JuSchG may, amongst others, not be publicly advertised and distributed in Germany (Sec. 15 (1) No. 6 JuSchG). Online distribution is entirely prohibited (Sec. 4 (1) sentence 1 No. 9 Interstate Broadcasting Treaty – “JMStV”). The games were also refused classification for being “indecent” pursuant to Sec. 18 (1) sentence 2 JuSchG. “Indecent” content is considered as harmful to minors but not as “significantly” harmful to minors.

III.         Consequences

A violation of the prohibition to publicly advertise and distribute physical versions of games falling under Sec. 15 (2) No. 4 JuSchG constitutes a criminal offense under German youth protection law (Sec. 27 (1) No. 1 JuSchG). A violation of the prohibition to distribute the content online constitutes an administrative offense (Sec. 24 (1) No. 1 lit. j JMStV) and is subject to fines of up to EUR 500,000. The latter also applies to live streams of the relevant games either because they feature critical game content or because they constitute advertisement. Violating the relevant laws additionally qualifies as violation of unfair competition law and can be subject to cease-and-desist claims from competitors and in particular consumer associations. The latter is also possible if the company is located abroad but targets German consumers.

Games which are refused classification cannot be released on most of the available consoles due to self-regulatory rules by the relevant developers/operators. Furthermore, most of the digital distribution platforms will geolock the game for the relevant jurisdictions.

Unrated media can also be added by the BPjM to the German “blacklist” of media harmful to minors. Games added to the blacklist may not be publicly distributed and advertised. However, games which fall under Sec. 15 (2) No. 4 JuSchG are already subject to these restrictions by law (see above). Nevertheless, in practice the BPjM decision typically makes these legal effects “official”.

IV.         Procedural comments

The USK refusal decision can be challenged by the applying company at least once. Additional costs do not occur. The game will be re-reviewed by a new committee. A second challenge requires an application by the German GAME association. In case the applicant applies for a second appeal, the USK automatically brings the case to the GAME association for it to decide whether it supports the second appeal and applies for it. Companies have the right to lodge arguments to the USK and to send a representative. The same goes for the BPjM blacklisting procedure: Companies owning the distribution rights have the right to be heard during the blacklisting procedure. Typically, the game is first reviewed by the BPjM via the so called simplified procedure (review by a three person committee). In case the game is blacklisted by means of the simplified procedure the concerned company can appeal the decision by applying for a decision of the twelve person committee (standard procedure). No additional costs occur. The company has the right to send a representative to the hearing of the twelve person committee. In case the BPjM would ultimately decide that the game does not meet the requirements of Sec. 15 (2) No. 4 JuSchG and other regulations concerning media harmful to minors, the game will not be blacklisted and can be regarded as “cleared”. In this case the USK would also be required to classify the game because the BPjM is the head regulator for media harmful to minors and overrules the former USK decision.

V.          Summary

Games which are refused classification based on Sec. 15 (2) No. 4 JuSchG should not be publicly distributed in Germany and not publicly advertised vis-à-vis German consumers. Physical Distribution is only permitted non-publicly (e.g. via special retailers or online shops). Online distribution is entirely prohibited. In case of non-compliance the content provider and (most likely) the distribution platform will be liable. Companies can challenge the relevant classification refusal and blacklisting decisions. Video platforms, live streaming platforms and live streamers should be aware that video streams of games falling under Sec. 15 (2) No. 4 JuSchG are also prohibited and subject to an increased risk.