I’m currently receiving a number of inquiries about the impact of youth protection legislation and the JusProg problem(see this article) on how to deal with streams from well-known YouTubers or the broadcasting of matches at events.
Is this still permissible? What age do visitors have to be?
I’ll take away the tension and resolve it: The question can hardly be answered with legal clarity at present, as many unknown factors play a role. In principle, I have had good experience of talking openly with the competent youth protection authorities and possibly with the trade authorities. However, it is usually important that one does not talk completely nonsense in the law on the protection of minors and formulate serious questions with basic legal knowledge. Since I have done this a few times, I can of course help with this.
The crux of the legal problems is that as a rule, it is not the law on the protection of minors, but the provisions of the Youth Media Protection State Treaty (JMStV) that apply. It depends, at least if you can’t try and test games yourself (as e.g. on GamesCom) usually does not affect the age marking of the USK. Although this is sometimes legally represented, it is probably a consensus that the age tags of the underlying games do not automatically apply to Let’s Plays, as passive videos are too different from interactive computer games. Let’s Plays are independent works and therefore can’t immediately infer from an age restriction in the sale a corresponding developmental impairment or youth danger in the JMStV. The presumption effect in accordance with Section 5 para. 2 JMStV is not working. Incidentally, this does not only apply to games that are released, for example, from the age of 16. On the contrary, the lack of equality of content is also applicable to indexed or at least seriously endangering games. The same applies to games that are not tested at all by the USK, such as the Battle Royale mode of Fortnite. This is where section 4 para. 1 No. 11, Para. 2 No. 2 JMStV does not automatically lead to an inadmissibility a Let’s Plays.
Therefore, events must always be checked, what age the visitors are, what protection mechanisms the organizers look like, when which content is transmitted and whether there can therefore be a development aliment. It also depends, of course, on whether games can be played yourself or esports tournaments or streams can only be broadcast and viewed on canvas. It can therefore depend on details in order to assess how one should proceed legally and organizationally. In the case of events, the problem of the Section 33i ff of the Trade Code must also be kept in mind. The exact design of the event is also relevant here (see this article on LaserTag, for example). This is where the legal uncertainty of an ancient decision by the Federal Administrative Court lurks(see my article on this here), but it can be avoided if you deal with the responsible trade offices in a clever and legally correct manner. Ignoring these points, however, there are problems ranging from fines to prohibition orders.
