Guest post: Surprise development yesterday stops January’s new ‘Online Youth Protection’ laws in Germany

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This is a guest post from Konstantin Ewald, partner at Osborne Clarke, a law firm with a strong games practice.

Games publishers operating in the German market do not now have to apply substantial new German Online Youth Protection laws, which were originally due to come into force in January 2011.

In today’s surprise development, the widely anticipated new laws hit a stumbling block in the German legislative process. The new laws would have resulted in widespread obligations for providers of online content regarding age verification and tagging of content for different age groups. These new laws are now on hold indefinitely.

Why?

Germany’s federal structure means the Prime Minister of every federal state and each state parliament have to give their approval to ratify the new laws. Although the new laws have already been ratified by every prime minister and all other parliaments, the state parliaments of North-Rhine-Westphalia and Schleswig-Holstein surprised everyone at the last minute by not approving the new laws.

While North-Rhine-Westphalia denied its approval, Schleswig-Holstein removed the topic from today’s agenda. This is a de facto denial as it was the parliament’s last meeting of the year and the ratification process cannot now be completed within 2010 as required.

What happens next?

Games publishers must now wait and see how the federal states deal with these unexpected decisions. As the new laws finally failed and no alternative is currently on the stocks, the federal states will have to start intensive and time consuming discussions on new drafts.

Even if the federal states can agree on a new treaty within a short amount of time, the adoption will again require ratification of every prime minister and every federal state. At the moment it is unclear how long this process will take and when a new treaty will be presented. We expect the principles of self-regulation and self-rating as described in our recent briefing note to remain untouched by upcoming new drafts.

Implications for publishers

With the rules unchanged, Games publishers will obviously have no legal obligation to change the way they publish on the web with regards the protection of minors. As the new laws would have resulted in even more extensive obligations and significant legal uncertainties, online publishers can be relieved for the moment.

At the same time, however, they should not forget that the current legal situation already requires effective protective measurements for minors. These requirements have not been softened by the failure of the new regulation. Therefore publishers still have to choose between technical access limitations and broadcasting times to prevent minors from inappropriate content.

As the new treaty could not present a workable technical solution for implementation of protective measurements, we hope that upcoming new drafts will contain better and more compromising proposals.

If you have any queries, please do get in touch.

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