Killing Games: A Look At German Videogame Legislation
August 27, 1999 Page 1 of 10
Over the years, game designers and publishers in the U.S. have become used to stories of game banning in Germany. However, in 1998, the German USK (a independent organization that rates computer games prior to their publication) declined to assign an "18+" rating to Quake 2, and subsequently the game's publisher, Activision, decided not to release Quake 2 through German retail channels. The game was subsequently put on the Index – a list of products that cannot be sold or marketed to minors.
There is a rough, if incomplete, understanding of how Germany enforces its parental guidance system, also known as the Index. Because of this lack of understanding, most people overlooked the significance of the Quake 2 incident. Neither the Index nor parental guidance ratings were at the heart of the matter in this case – Quake 2 was to become subject to German criminal laws, just like Mortal Kombat. And this type of action against games might become more common in the future. Soon, the impact of criminal laws on the first-person shooter (FPS) game market in Germany might actually outweigh that of the Index.
BPS and the Index
Germany has a federal authority, the "Bundesprüfstelle für jugendgefährdende Schriften", or BPS (see Sidebar 1), that was set up to protect minors from publications that are considered harmful, (i.e., prone to cause "confusion or disorientation with respect to social behavior or ethics"). It was formed based on the school of thought that observing violence leads to imitation, and that exposure to descriptions or representations of unlawful, violent or aberrant behavior will initiate, contribute to, or cause, similar behavior patterns in adolescents.
The BPS has at its disposal a single means of enforcement, the Index. Putting a book, video tape, or game on the Index restricts advertising and sales – basically, the item in question has to be kept out of sight from minors, to make sure that, ideally, minors don't even know of its existence. The Index is explicitly not meant to censor items from adults, and, in theory, access to material put on the Index should still be available to adults. Furthermore, the right of parents to choose to expose their own offspring to material on the Index is not restricted by law. In theory, the Index equals an 18+ rating, with added precautions to keep the product out of children's hands. In practice, however, the additional costs and the overall hassle involved led to many publications being taken out of the market following a BPS decision - a censorship by effect if not by name.
The somewhat makeshift procedures lead to sometimes inconsistent and confusing decisions, and the workload adds to that. For example, the request to put Wolfenstein 3D on the Index was filed in 1992, but the decision was taken only in 1994. A decision about its successor, Spear of Destiny, was not made by the end of 1997, long after it was released.
Further, the BPS often neglected to inform the publisher or author about problems related to a title. Sometimes it found itself unable to simply determine the address of a publisher. Decisions taken without notifying a German representative of the game, or in the absence of such an entity, the original publisher, in fact contradicts the right to be present and be heard at the BPS ruling. German courts have rejected BPS decisions following appeals in such cases. Additionally, an author or publisher has every right to challenge a BPS decision in court. To name a particularly interesting example, GT Interactive in 1997 successfully appealed a 1984 decision which put Battlezone on the Index. However, challenges to BPS decisions are rarely undertaken, and they're not always successful.
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