Age restriction: What YouTubers can learn from the latest OLG Schleswig ruling

A new precedent: what was the starting point?

YouTube provides us with a powerful platform to share thoughts and ideas, showcase creative projects, and forge meaningful relationships with viewers around the world. But with this far-reaching influence comes a certain responsibility – the responsibility to share content that is respectful and appropriate. Indeed, the question arises as to how far freedom of expression goes on a platform like YouTube.

A recent ruling by the Higher Regional Court of Schleswig brings this issue into the spotlight. This remarkable ruling sheds light on the balance between content creators’ creative freedom and the responsibility to share content that is safe and appropriate for all audiences.

The controversy began with a video that portrayed certain aspects of migration in a perhaps disturbing light. Due to its presentation, the video was given an age restriction by YouTube. The move was deemed necessary by the platform to protect younger and potentially sensitive viewers from potentially disturbing content.

This ruling and the issues it addresses shed light on the importance of content creator responsibility. It asks us to take a careful look at how we express our opinions and to remember that there are limits, even on a platform that allows us to unleash our creativity and expression as much as possible.

The controversial video and YouTube’s policies

The video in question contained content that was deemed violent and potentially disturbing to younger or sensitive viewers, and was therefore age-restricted. The video addressed possible negative effects of migration on society, including the portrayal of migrant men as aggressors and a visualization of so-called “mass migration” as threatening. Such depictions were seen as potentially anxiety-provoking and shocking, especially to suggestible and underage viewers.

In its ruling, the OLG Schleswig took a closer look at these depictions and found that they corresponded to the examples set out in YouTube’s guidelines against hate speech and violent or cruel content. The guidelines prohibit statements that suggest that all people from certain groups, such as people with an immigrant background, are criminals and criminals who threaten our existence. While the video did not explicitly call for people with immigration status to be kicked out of the country, it did incite dislike for these populations, which were sweepingly portrayed as violent drug dealers. In addition, the video suggested that the use of firearms was appropriate in defense against the “marauding hordes” and called for resistance.

The court concluded that these remarks corresponded to the hate speech referred to in YouTube’s guidelines and that the age restriction was within the scope of the contractual agreement on unacceptable content as a milder means compared to the complete removal of the video. It is important to emphasize this point: YouTube, as a platform, has the right and duty to monitor and enforce its policies to ensure a safe environment for all users, including those who may be affected or disturbed by certain content.

This ruling underscores the importance of responsible content creation and the need to consider the impact of our content on all audiences. It is a powerful reminder that freedom of expression and creative expression go hand in hand with the responsibility to be respectful and sensitive to our diverse and global viewership.

The legal arguments: contractual agreements and freedom of expression

The decisive question in this case was whether the age restriction violated the terms of use concluded between the content creator and YouTube. The court concluded that YouTube had acted fully within its contractual agreements by implementing the age restriction.

YouTube’s guidelines played a central role in this. YouTube has specific rules and policies regarding content that may be shared on its platform, and it reserves the right to take action against content that violates those policies. In this case, the guidelines included specific sections on hate speech, violent or cruel content, and youth protection. The offending remarks in the video met the examples of hate speech listed in YouTube’s guidelines.

The age restriction that YouTube imposed on the disputed video was a milder step compared to the complete removal of the video, which would also have been an option under YouTube’s terms of use, according to the ruling of the OLG Schleswig. YouTube’s policies state that YouTube features may be restricted for content that approaches hate speech to ensure a safe and inclusive platform for all users. The court emphasized that the age restriction is in line with the content creator’s contractual obligations to YouTube and does not violate the terms of use.

This finding has important implications for YouTubers and content creators in general. It emphasizes the importance of adhering to platform policies and clarifies that platforms like YouTube are well within their rights to operate within their own terms of service to protect their community and create a safe environment for all users. It reminds us that we have a responsibility as content creators, both to our viewers and to the platforms on which we share our content.

The lessons from the verdict: An appeal to YouTubers

As a YouTuber and content creator, it is essential to be aware that freedom of expression, although a fundamental right, has its limits. Especially if the content could be classified as potentially harmful, offensive or improper. It is crucial to familiarize yourself with and adhere to the content guidelines of the platform you are sharing your content on. This can avoid unwanted restrictions such as age restrictions or even content removal.

Platforms like YouTube have the right to create and enforce their own terms of use. These serve not only to protect the platform itself, but also to protect users and the broader community. Hate speech, violent content, and other forms of inappropriate or potentially harmful content may be restricted or removed from these platforms to ensure a safe and inclusive environment for all users.

At the same time, YouTubers and streamers have the right to freedom of expression. They have the right to share their thoughts, ideas, and beliefs as long as they respect the rights of others and adhere to the platform’s policies. Freedom of expression is a fundamental human right and a cornerstone of democracy. It enables the exchange of ideas, promotes cultural and social development and is essential for a functioning society.

Nevertheless, freedom of expression can be restricted if it interferes with the rights and freedoms of third parties. This may be the case, for example, if hate speech or content glorifying violence is disseminated. Such restrictions serve to ensure the protection of other people and to create a balance between the various rights and duties in a society.

It’s important that we, as content creators, respect this balance and recognize our responsibility, both to our viewers and to the platforms on which we share our content. In this way, we can help create a respectful and inclusive online environment while protecting and promoting the values of freedom of expression.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.