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Good games get bad ratings

Germany has passed a new youth protection law -- Beiten Burkhardt's Dr Andreas Lober explains why it can make life difficult for loot boxes, but also for great games

Germany has long been a difficult territory for games companies. But these days, only a few games get banned, and even Wolfenstein can be released uncut.

However, German lawmakers have not stopped being difficult. On March 5, the German parliament passed a revision of the Youth Protection Act (Jugendschutzgesetz, "JuSchG"), which is expected to be enforced from April 1, 2021. What makes the new act so difficult is that the criteria for age ratings are set to change.

Before now, Germany's age ratings for games were mostly about war and violence, and occasionally about sexual content. However, it seems that the lawmakers want to throw in anything which could potentially be bad for kids -- no matter whether it is related to the game content or not, and no matter how many other laws already exist that already address these potential risks.

It seems lawmakers want to throw in anything which could potentially be bad for kids

New age rating criteria include communication possibilities, purchase functions, data protection and advertising for other media. The promotion of "excessive usage behavior" and "gambling-like mechanisms" are also to become relevant for the age rating.

The ministry in charge of the act promotes it as an important step to protect the allegedly unprotected kids -- as if there were not enough existing laws regulating inappropriate communication (such as the Criminal Code), data protection (such as GDPR, the German Federal Data Protection Act, the Telemedia Act, and the ePrivacy Regulation to come), online purchases (e.g. the right of withdrawal), purchases by minors (the Civil Code), advertising targeted at kids (Unfair Competition Act, Youth Protection Guidelines), and gambling (Criminal Code, State Treaty on Media, State Treaty on Gambling).

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Dr Andreas Lober, Beiten Burkhardt

But is seems the more laws, the merrier. Beyond philosophical questions on whether it is good to have more laws for issues which are already regulated elsewhere, there are a few very practical challenges for games companies.

Games that contain, for example, an unrestricted chat function may get a higher age rating in the future. Products with in game-purchases may also get a higher rating -- especially if they include loot boxes. There are some statements floating around in public, such as the ministry saying that loot boxes might have to be switched off by default, or a media article saying that loot boxes will lead to a USK rating of 18+.

That's not exactly what the law says, but the truth is that games which contain loot boxes as a permanent gameplay element might get a higher rating than in the past -- they are unlikely to get [German age rating] USK 0 or 6, even if they are just sporting simulations, especially if the related platform does not have appropriate precautionary measures in place. It would be completely at odds with the established perception of age ratings' if sporting simulations were to suddenly receive high ratings -- from 0 to potentially 16+ -- because of in-game chat or loot boxes.

Finally, it is completely unclear what falls into the category of mechanics promoting excessive usage behavior. According to a statement the regulator for online media -- KJM -- issued a while ago, quite a few gameplay elements are likely to promote excessive use. These include unlimited gameplay time, game objectives which cannot be reached, opaque reward systems, individual character customization, negative consequences of not playing, gambling-style elements, published high score lists, or the need to join a group to make progress in the game.

Many classic or casual games fall under these criteria -- who has ever finished Pac Man or Tetris? -- but they also cover MMOGs or squad-based combat gameplay. Under the new youth protection act, the new criteria will have to be applied by [German ratings board] USK -- there is still hope that they will find a more workable interpretation.

Despite all the criticism in this regard, the law is still to be applied to telemedia -- i.e. online content. There is likely to be some overlap here with the Interstate Treaty on the Protection of Minors in the Media (Jugendmedienschutzstaatsvertrag, "JMStV"), which actually applies to telemedia and is also currently also being revised by the federal states.

Dr Andreas Lober is partner at the law firm Beiten Burkhardt. He has been advising video game companies for many years. The views expressed in this article are his personal opinions and conclusions.

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