Gaming and e-sport: who guarantees the protection of minors?

Content creators like to record themselves playing video games or give viewers the opportunity to watch their game live. The target audience of most content creators are adults. However, games like Cyberpunk 2077, GTA V, PUBG or Counter Strike are also very popular among children and adolescents. Livestreams with competitive formats among recognised industry giants have particularly high viewer numbers. Central platforms for streams are, for example, YouTube or Twitch. Users can access and watch videos and livestreams free of charge and mostly without having to register.

But who is responsible for the protection of minors in such cases and what are the consequences in case of violations?

Important regulations for protecting minors in the gaming and e-sports sector

Various legal sources regulate the protection of minors regarding media content offered on television, live streaming and on-demand platforms. The most important are the German Interstate Treaty on the Protection of Human Dignity and the Protection of Minors in Broadcasting and in Telemedia (Jugendmedienschutz-Staatsvertrag - JMStV) and the German Interstate Media Treaty (Medienstaatsvertrag - MStV). 

The regulations of the JMStV and the MStV do not only apply to broadcasters or telemedia providers established in Germany. Providers who are not established in Germany but whose content is intended for use in Germany must also comply.

Specific obligations are imposed on broadcasters, telemedia providers and video-sharing services to ensure the protection of minors. These are regulated in Sec. 5 et seqq. JMStV. The protection of minors is intended to ensure that appropriate age groups do not have access to content that could impair their development.

Video-sharing service responsible for implementing the protection of minors

Video-sharing services are required to take appropriate measures to protect children and adolescents from content that could impair their development (Sec. 5a (1) JMStV). Such measures may include age verification and access control systems, user classifications or precautionary measures by technical or other means as well as labels identifying youth protection programmes and time limit options (Sec. 5 (3) JMStV).

For example, in order to protect minors, YouTube has set a minimum age of 16 for the use of the service. The platform provides for access restrictions via specific account and app forms such as YouTube Kids or YouTube accounts with parental controls. There are also warnings when inappropriate content is accessed and the option to report inappropriate content, upon which YouTube checks whether the reported content complies with the terms of use.

The terms of use of the Twitch platform stipulate a minimum age of 13. The user must declare that he/she exceeds this minimum age threshold when downloading or otherwise using Twitch. In addition, registered users can report channels in case of violations of the terms of use and protection of minors, upon which the channel's licence to use the platform can be terminated or the use of the channel can be blocked.

The provider of a video-sharing service pursuant to Sec. 7 (1) JMStV must also have a youth protection officer who, in the event of content that is harmful to minors, can influence the provider in order to have it change the harmful content.

Content creators must also bear the protection of minors in mind

Content creators must also appoint a youth protection officer if their content is relevant to youth protection and if they are required to apply for a so-called broadcasting licence under the JMStV. Anyone who offers content on a business-like basis is subject to the licence requirement. For this purpose, it is irrelevant whether or not the offer of such content is intended to generate a profit.

Content creators who reach an average of fewer than 20,000 users at any one time over a six-month period or whose channels are of limited importance in shaping individual and public opinion are not subject to licensing. If an obligation to appoint a youth protection officer exists, this can usually be fulfilled by the content creator joining a voluntary self-regulation institution (USK, FSM).

In addition, content creators must comply with the terms of use of the respective video-sharing service. On YouTube, content creators can independently set an age restriction for livestreams that are not suitable for viewers under 18 years of age in order to comply with the protection of minors. On Twitch, there is an option to add a parental control notice to your own channel if the content is inappropriate for certain viewer groups due to their age.

Measures for protecting minors have limits

Unfortunately, YouTube and Twitch's measures can be easily circumvented. Age information is difficult to verify on the Internet, especially when content can be accessed and viewed without a user account or stored payment information.

Time-limit options, which stipulate that a piece of content can only be streamed from a certain time of day onwards, also reach their limits due to the international nature of the gaming and e-sports industry and the associated time differences. Thus, many of the proposed and implemented measures often remain ineffective. The overwhelming responsibility for protecting minors thus continues to rest on the shoulders of their legal guardians.

Violations could result in fines and loss of revenue streams

The competent state media authority checks whether the provisions of the JMStV are being complied with, whereby the Commission for the Protection of Minors in the Media (Kommission für Jugendmedienschutz – KJM) is responsible for fulfilling this task.

Anyone who fails to comply with the provisions of the JMStV risks a fine of up to 500,000 euros or, in particularly serious cases, may even be liable to prosecution. Content creators risk having their accounts blocked if they do not comply with parental controls and the respective terms of use of the video-sharing services. In addition to the loss of image, this of course also means an enormous loss of sales.

Click here for more articles about gaming & e-sports:

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• Cheating in multiplayer games: the TTDSG as a hurdle for reading out the hardware ID?
• E-sports and corporate law: structures and investment opportunities
• Young initiative: Oppenhoff advises clients in the gaming and e-sports sector

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