Protection of Minors and the Internet in Germany-Opposing Interests?
- A Brief Overview Of The Laws Governing The Protection Of Minors And Their Consequences
by Astrid Hilgemann
Editor's Note: The 29-year old author of this article is a practicing attorney based in Berlin. She is also the Managing Director of IVNM. IVNM (Interessenverband Neue Medien, www.ivnm.de, or Interest Group for New Media), started in August 2001 as an initiative. In December 2001 it was established as an association. Since then, IVNM has fought for a balanced relationship between the interests of its members and the protection of minors in Germany. Countless Internet companies involved in erotic and adult content have joined the IVNM: membership is growing constantly. Before IVNM was founded, no institution like it existed in Germany. The importance of such an interest group was and remains great, considering the political issues regarding the Internet.
In Germany, the political climate in regard to the protection of minors is more serious than any other western country. However, as politicians establish national regulations governing the protection of minors, they clearly are not aware that national regulations on an international medium such as the Internet are in many cases meaningless. Indeed, German firms are responsible for just a small share of the content, while the lion's share comes from foreign companies, which are not bound by German laws. Furthermore, if such laws dramatically limit German firms in competing with foreign companies, German firms may respond by either moving their headquarters over the borders to another European country, or shutting down their business. This results in less German content available on the Internet, which in turn means that the strict German regulations have less of an effect. German laws only govern German content.
German criminal law absolutely forbids adult content being made available to children under the age of 18.
An amendment to the Criminal Code is not under consideration.
Beyond the Criminal Code, a further law regulates the protection of minors from pornography. It states, among other things, that content potentially harmful to children can only be offered on the Internet, if provisions are made through technical precautions to ensure that the contents, or their dissemination nationally, can be limited to adult users. Taking this regulation into consideration when interpreting § 184 of the Criminal Code, it is the duty of the site operator or content purveyor to create a so-called closed user group" for its content and offers, and to ensure that only people who are 18 years old or over can join this group." A closed user group can be created by using an age verification system (AVS) to regulate entry to the respective sites. Potential users must identify themselves as being 18 years old or over, before being able to enter the area with adult content.
This requirement creates a clear competitive disadvantage for German companies, compared to foreign companies who can allow users easier access to their content without the AVS hurdle. At the same time, fulfillment of this regulation creates new problems:
For example, the law does not define what makes content pornographic, as opposed to erotic, from which minors don't need to be protected. The following characteristics are included to help define the terms: Content is presumed pornographic when the primary sexual characteristics of a woman can be seen or when the man's member is seen reaching an angle of 45 degrees. The sexual act itself cannot be shown; a woman cannot be degraded or shown purely as a sexual object.
Once content has been identified as pornographic, then the next questions is what sort of AVS to use to prevent minors from accessing it. Again, the law does not clearly define which measures are considered acceptable - and the selection is great: Should one use an AVS which is free of charge, and only examines the algorithm of the personal identity card number which the user has entered? If the algorithm checks out and the user is old enough, then he can proceed; if not entry is denied. Or should one select an AVS for which the user must pay a fee, but which checks not only the personal i.d. card number, but also requires a copy of the i.d. card and a bank or credit card (because a bank account can only be opened by a minor with parental permission and credit cards are generally only issued to people over the age of 18)? Or, should the operator choose a system, which accepts payment by debit in combination with the examination of the personal i.d. card number? Then, there's the system that requires the personal i.d. card, or a faxed copy, or in some cases, both, for entry. Still another system...
The choice of AVS should be a well-considered decision. If the free system is used, which simply checks the personal i.d. card number- then the operator can be accused in a criminal court of not sufficiently ensuring the protection of minors. After all, a child could simply sneak an i.d. card from his parents and enter that number. The question, which logically derives from this accusation, is on what basis can the operator be held responsible for criminal acts conducted within the family? This has not yet been answered.
However, it is also possible that legal proceedings would simply be dismissed because the authorities responsible do not believe a crime has been committed. The decision is dependent upon the individual perspective of the particular judge or prosecutor: legally, the case is not clear-cut.
Independent of these problems, the current legal situation sets other requirements for the operator to fulfill, including naming someone responsible for the protection of minors as a consultant in the design of the Web site, providing a detailed masthead on the page, giving detailed consumer information in the dialer (fee-based dial-in software), etc.
A new law will take effect in April 2003. Named the "Jugendmedienschutzstaatsvertrag" (Protection of Minors from the Media), the law was created solely for the protection of minors in Germany from unsuitable contents that are broadcast or available on the Internet. The extent to which this new law aggravates the competitive situation for companies in Germany remains to be seen. During the course of the hearings before the passage of the new law, IVNM attempted to draw attention to the problem resulting from an international medium being too tightly regulated on a national level. Unfortunately, no attention was paid to this issue; or to our argument that children could access pornography at any time through, for instance, a .com domain.
IVNM, in cooperation with other German associations, hopes to offer a solution in the best interests of both operators and parents to the politicians and the national Commission for the Protection of Minors (which will assume its duties in April 2003). This solution - which already exists - is called ICRA (Internet Content Rating Association, www.icra.org).
ICRA is a user-defined filter program which works as follows: The operator who wishes to use ICRA to label his content, fills in a questionnaire about what his site offers. ICRA then creates a content label (a short computer code), which the operator builds into his Web site.
There is no classification by a third party institution - the operator categorizes his content himself, through his questionnaire answers.
Parents have the opportunity to program their Internet browser so that access to certain Web sites can either be permitted or denied, based on the objective information held in their computer code labels, and their own subjective preferences. Some templates have already been created to make it easier for parents to define the type of sites their children can access. Currently in consideration for the German market in particular, is making it possible to set up access based on age groups - another relief for parents.
How effective ICRA can be, depends to a great extent upon how the operators label their content, as well as on parents understanding and use of the ICRA system. If both sides accept it, then we have a very effective filter, which can offer children the protection necessary for their age. This individual protection requires the cooperation of operators and parents.
Right now, the operators are forced to bear full responsibility in Germany. Cooperation among parents, operators and politicians makes much more sense, and could lead to a far more effective protection of children.
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