Germany: Draft Youth Protection Reform Act Would Regulate Game Mechanics

The German government has published a draft act to update the country's notoriously complicated youth protection system. Age ratings could in the future take into account in-game communication as well as in-app purchases and surprise mechanics.
The German government has shared an initial draft for an amendment of the Federal Youth Protection Act (YPA). The draft contains a number of new or stricter obligations for games companies and content platforms, expressly including those based outside of Germany.
These new rules particularly concern age rating and age gating. We provide an initial overview of the reform draft of the YPA – but note that this can (and should) still change significantly in the course of the legislative process.

Planned updates to the YPA

For operators of user-generated content platforms domiciled outside of Germany, the draft contains an obligation to designate a local representative for service. To what extent this obligation is compatible with the European Union's "country of origin" principle will certainly be the subject of controversial debates (and, hopefully, clarifying court decisions), but providers domiciled outside of the EU will likely have to comply from the start if the draft becomes law as currently proposed.

The other substantial proposed changes to the YPA can be broken down into four categories:

  • Stricter age ratings,
  • Extended labeling requirements for games platforms,
  • Precautionary obligations for user-generated content platforms (reminiscent of the infamous Network Enforcement Act), and
  • Creation of yet another new federal regulator.

In the detail, however, many regulations are not fully thought through and lead to contradictions and additional bureaucracy instead of practical modernization.

Stricter age ratings

Age ratings under the draft would need to take into account not just the contents of a game, such as violence or sexual content, but also “circumstances of the respective use of the medium which lie outside the effects of the content of the medium”, in particular if a “concrete danger prognosis” suggests considerable risks for the “personal integrity of children and adolescents”.

According to the explanatory memorandum that accompanies the draft, this is intended in particular to cover communication risks (cyber-bullying, cyber-grooming), but also “cost traps” and “loot boxes”. This would represent a genuine paradigm shift and create considerable legal uncertainty, because there are no generally accepted definitions for any of these terms, and it is naturally difficult to make concrete predictions about the "concrete" dangers caused by a game that is by default unpublished at the time it is reviewed for an age rating.

The explanatory memorandum goes on to consider that precautionary measures of individual platforms could also be taken into account for the age rating. This is of course entirely unrealistic. It would mean that an otherwise identical game could receive different age ratings depending on the distribution channel. If anything, this breaks any system of age ratings that purport to offer reliable guidance to parents.

Extended labeling obligations

Under the draft, commercial games platforms will have to display a rating for each piece of content (other than user-generated content). This can either be the official age rating obtained from an age ratings organization, or generated by an “automated rating system”.

At first glance, this regulation appears to be a accolade for the international IARC system (as already implemented in the Google Play store among other platforms). However, the draft requires that it be a system “recognized by the state authorities [of the German federal states]”. Neither the draft nor the explanatory memorandum explain what this recognition should look like.

Youth protection by design: Obligations for platform providers

Providers of commercial platforms for (any type of) user-generated content are spared the need to label each individual piece of content, but must take “appropriate and effective precautionary measures” to protect minors from unsuitable content.

The draft sets out a range of possible such measures from which the provider can choose, including reporting functions for unsuitable content and inappropriate in-game communication, or providing measures for users to tag their UGC as "18+", along with a "safe mode" that can be used to filter such content.

Platforms do not necessarily have to implement all these suggested measures, but the precise scope of what is required of them remains unclear and subject to a case-by-case analysis. This is an issue because insufficient precautionary measures can be subject to fines. The draft installs a complicated system of co-regulation between industry self-regulation bodies and supervisory authorities to establish concrete guidelines, so it would take quite a while until further clarity is achieved.

A new regulator

The Federal Review Board for Media Harmful to Minors, currently responsible only for imposing – but not enforcing – advertising and distribution restrictions on particularly harmful media, will receive additional responsibilities. Under a new name, the Federal Center for Protection of Children and Adolescents in the Media, it will continue to perform the tasks of a review board, but will also monitor and enforce the implementation of the precautionary measures outlined above. Failure to comply with its orders to implement certain measures can then be punished as an administrative offense.

What this means

The draft is bureaucratically overloaded and unfortunately still far from the goal of a convergent, sustainable regulation fit for the media landscape of the 21st century. The draft of the YPA will certainly undergo changes in the legislative process. Nevertheless, game developers, publishers and platform providers are well advised to think about strategies to cope with these new rules, and monitor further developments.

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