Youth Protection In Germany: Online Age Checks And Daytime Blackouts Ahead?

Author:Mr Andreas Grünwald and Christoph Nüßing
Profession:Morrison & Foerster LLP


Last week, German regulators decided to no longer accept the widely used "JusProg" software as a sufficient means for online service providers to comply with statutory youth protection requirements. The decision is effective immediately, although it will most likely be challenged in court. If it prevails, it puts video-sharing platforms, distributors of gaming content, and online media services at risk of being held accountable for not properly protecting minors from potentially harmful content. For the affected providers, this is particularly challenging because it will be hard, if not impossible, to implement alternative youth protection tools that will meet the redefined regulatory standards.

This alert provides the legal background for the decision and discusses its implications in more detail. It is relevant to all online service providers that target German users.

Legal Background

Under German youth protection laws, all online service providers must generally ensure that minors cannot access any content that is deemed harmful for their respective age group. For example, 16+ rated content shall not be available to younger users. "Harmful" content is content that is considered to adversely affect an individual's personal development, such as nudity or violence. It is distinct from "illegal" content (e.g., Nazi propaganda or hate speech), which must not be made available to any audience per se, and which may also be subject to criminal charges.

German law offers online service providers a choice of three possible means to comply with this obligation:

Use scheduling restrictions to ensure that harmful content is not available during daytime, i.e., when minors would usually be online. For example, 16+ rated content should only be shown between 10:00 p.m. and 6:00 a.m. Employ technical measures to ensure that minors are at least significantly impeded (if not fully blocked) from accessing any content that is not suitable for their age group. This will typically require the service provider to issue a PIN to an adult user after conducting an age verification check. Tag content with age labeling in a format that officially approved youth protection software can read. In practice, service providers often store an "age-de.xml" file with their offering. This file then designates suitable age groups for the service as a whole or separately for individual parts of the service. As long as a provider implements at least one of these...

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