Marketers to German kids face draconian penalties under new media laws following an allegedly video games-influenced shooting tragedy.
Who: German legislators and the Bundesprufstelle für Jugendgefahrende Medien
When: September 2002
New media protection for minors introduced in Germany in September 2002 is likely to have a significant impact on marketers. Historically, protection for youth against harmful media content has been organised by way of rules introduced both at national level by the Federal Government, and at regional level, by the Bundesländer. Also, various self-regulatory bodies have played a role, although the exact nature of their relationship with the Federal and Regional authorities has in some cases been unclear. For some time there has been an initiative to simplify and streamline these controls so as to deal in one set of controls with the protection of minors in the face of all media, including the internet and m-commerce and all types of content including editorial and marketing communications. The process was given added impetus by suggestions that a pupil who killed 17 people at a school in Erfurt in April 2002 had been influenced by brutal video games. Now, in September 2002, a new inter-state agreement and a linked Youth Protection Act are coming into force. Section 6 of the Interstate agreement lays down detailed regulations as to what kinds of marketing to children are forbidden. The Federal Investigation Office for Media Harmful to Minors is to be given greater responsibility to monitor and enforce these laws and will in future be able to take action of its own accord against infringers.
Violations of the laws can be punished with penalties of up to €500,000 and particularly serious offences are subject to the criminal law and can be punished with imprisonment of up to 10 years.
In the light of this, one might have hoped for clear guidelines as to how to avoid offending against the new laws. At the moment, however, these are very broadly drawn and there is much industry debate as to the lack of definition.
By way of example, any marketing material which can cause physical or mental damage to children is forbidden and in particular it is forbidden to exploit the inexperience and credulousness of children and young persons, to directly request children to induce their parents or any third party to purchase goods or services, to publish marketing material which in any way creates a bad influence on children or to arrange lotteries or contests which are likely to mislead minors.
Why this matters:
At European level the debate over controls on advertising to children has been rumbling on for some years. Advertising industry bodies have done their job by warning of a domino effect started by strict bans in Northern Europe and Greece and so far there seems to be little real appetite at a pan-European level for draconian bans on, for instance, advertising on TV aimed at children such as those which currently operate in Sweden.
Developments such as this in Germany, however, will concentrate the minds, for instance, of marketers to children online based in all EU states.
Elsewhere on marketinglaw, we have recently reported on the implementation in the UK of the E-commerce Directive. This introduces a default 'country of origin' legal regime for electronic communications in Europe. The effect of this is that, subject to various exceptions, marketers based in say the United Kingdom, do not have to worry about German laws like this when they run on-line promotions which may be of interest to German children. This is provided the UK marketer complies with local, UK regulations and laws. Having said this, there are, as we have reported exceptions and there has to be a risk that since some of these are health and safety related, Germany's new Youth Protection Act will come within those carve-outs. If it does, then UK marketers, particularly those who have sister companies or clients in Germany, should take special care in formulating digital marketing campaigns aimed at children which may end up on a PC or mobile in Germany.