YouTube/Twitch and swastikas in streams/videos?

Currently, there is a persistent discussion about whether videos from the game “Wolfenstein: Youngblood” can be shown in the English version on YouTube or Twitch or whether this would meet the facts of Section 86a StGB.

§ Section 86a StGB is not relevant if the act (in this case, the publication of the video/stream) serves civic education, the defense against unconstitutional efforts, art or science, research or teaching, reporting on current events or history or similar purposes.

For many years I have been convinced that games are art and that the display of swastikas is therefore permitted in most cases in computer games. Legally, a differentiated use of Nazi symbols would now be perfectly permissible.

The USK, as an audit body, has also agreed with this view and decided that since last year the USK bodies would decide on a case-by-case basis whether the so-called social adequacy clause can be applied. In Wolfstein’s case, The USK agrees with Youngblood.

However, this is not, of course, a carte blanche, because the USK is not the public prosecutor’s office. The display of the video, especially when a game is commented on, edited and otherwise processed as if it were processed, represents a new work in copyright terms and must therefore also be evaluated in isolation.

Although some YouTube networks have recommended to show only the German version of the game, I think the risk is manageable, as long as you actually only show game scenes directly from the game, the anti-constitutional symbols are not explicitly represented and possibly also communicated in a problematic way. It is a question of single-celling, but I personally think it is unlikely that there would be an indictment, and even less so, that this would occur in this day and age, citing the revised audit practice of the USK and the fact that the USK’s audit practice and the fact that the English version of the game has received a USK-18 rating, would lead to a conviction.

This is particularly true in view of the fact that even Paragraph 86a of the StGB itself provides for the possibility, in paragraph 4, that the court may, in the case of an indictment by a public prosecutor, refrain from punishment if it considers the guilt to be low. This is the latest in the case of a procedure that is likely to come to an end.

However, there are, of course, certain financial risks, from reporting by users, which could lead to discussions with YouTube or Twitch, to the purely theoretical probability that an overzealous prosecutor will feel called, which leads to the need to involve a lawyer whose costs would have to be borne, even if the investigation was closed.

However, it is ultimately up to each streamer to decide whether to take the risk and possibly use the marketing effect. He also bears the risk on his own, even though, as a lawyer, I would be happy to support every streamer in defence against the prosecution, because he would certainly receive a lot of coverage from the player community.

Incidentally, I commented on Call of Duty last year on Bild.de.

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.