Indexing

Indexing is censoring media works allegedly harmful to young people. These works are entered into an official list – a process known as Indizierung (indexing) in German. The decision to index a work has a variety of legal implications.

What is indexing?

The authors, producers or rightsholders of the work in question are notified of the application or request for indexing. They have the right to a legal hearing.

The Bundesprüfstelle may not continue with the indexing process, if one of the following requirements is met:

• A work has been rated by the Freiwillige Selbstkontrolle der Filmwirtschaft (the film industry body which practises voluntary rating of movies) and did not receive a Nicht freigegeben unter 18 Jahren rating. As of April 2003 this particular rating is no longer issued. The new Keine Jugendfreigabe rating has been added instead, but has stricter rules as it cannot be indexed. However, movies rated Nicht freigegeben unter 18 Jahren before that date can still get this rating when a new label releases such a movie and therefore has to apply for a re-rating.
• A work has been rated by the Unterhaltungssoftware Selbstkontrolle (the software industry body which practises voluntary rating of entertainment software) since 1 April 2003.

The decision whether a media work is harmful to young people is taken by the Zwölfer-Gremium (Panel of Twelve) or the Dreier-Gremium (Panel of Three). On these panels, youth protection agencies, the arts and business are represented by honorary assessors. The members of the panel act independently and not as directed by the interests they represent.

The Zwölfer-Gremium consists of:

• the Presiding Officer (or Deputy Presiding Officer) and assessors representing:
• art
• literature
• the book trade and publishers
• the suppliers of videos and the telecommunications industry
• voluntary-sector youth organisations
• public-sector youth organisations
• teaching staff
• the churches
• three representatives from the ministries responsible for youth protection in the sixteen Bundesländer, who serve in rotation.

The hearing, which representatives of the work in question can take part in, is oral and not open to the public. However, the presiding officer can allow third parties to attend the hearing. As in the courts, transcripts of the hearing are not published, but the written reasons for a decision can also be requested by those not involved in the proceedings. The names of the assessors are disclosed to those involved in the proceedings and are also listed in both the transcript and the decision to index. If those not involved in the proceedings request the decision to index, any personal data (of assessors and also of any companies or lawyers involved) is removed.

The decision to index requires a majority of two-thirds of the votes. If this majority is not reached, the indexing is rejected. In the event that the Bundesprüfstelle holds a meeting with the legal quorum of nine people, a qualified majority of seven must vote to index or the application will be rejected.

The Dreier-Gremium has jurisdiction only in cases where harm to young people is obvious. At least one assessor on the panel must be a representative of art, literature, the book trade and publishing, or the video or telecommunications industry. An application for indexing will be accepted only if the panel votes unanimously.

The person responsible for an indexed work can file suit against the decision to index in an administrative court.

The List of Media Harmful to Young People

The List of Media Harmful to Young People (colloquially known as the Index) is published only for physical media (those whose content is stored as an object rather than virtually). The list of virtual media is not published so as to avoid advertising these works. It is technically illegal for third parties to publish the list, and the only sanctioned lists can be found in the official publications of the BPjM. The lists are published in BPjM-Aktuell, a quarterly journal which costs €11 per issue. Nonetheless, there are numerous lists available on the Internet that reveal which media has been indexed or confiscated.

While these online lists are technically illegal, their right to exist and how the publication has yet been untested in court, as only a small number of them have shut down voluntarily after receiving warnings from a number of non-governmental youth protection associations. As such, it is as yet unknown whether a ban on the publication of these lists could be a violation of the Youth Protection Act. If it is not, then such a ban would not be permitted under article 5 of the German constitution.

Under the new Jugendschutzgesetz, a decision to index remains valid for 25 years. After that, the work must be removed from the Index. If the BPjM is of the opinion that there is still a risk of harm to young people, it must begin the legal proceedings afresh. After a popular movie has been removed from the index, there is usually a label that has it re-rated by the FSK (which does not rate indexed movies). Most previously indexed movies get an FSK 16 rating. As commercial interest in old video games is usually very low, no one wants to pay for a re-rating by the USK.

In the event that the material or legal situation changes, the rightsholders for an indexed work can apply for the proceedings to be re-opened under Article 51 of the Verwaltungsverfahrengesetz (the Administrative Proceedings Law) with the aim of removing the work from the list.

Legal consequences

The legal consequences of a work being listed on the Index are enumerated in § 15 Jugendschutzgesetz[1] (law for the protection of minors):

1. It must not be sold, provided or otherwise made accessible to minors.
2. It must not be displayed where it can be seen by minors. This would, for example, include playing an indexed game in the presence of minors (e.g. streaming gameplay over the internet).
3. It must be sold within a shop in an area accessible only to adults ("under the counter"). Basically selling indexed titles per mail order is illegal, however, it is permissible if the package may be handed over only to a specified adult person, who has to present ID.
4. It must not be rented out, except in a shop inaccessible to minors.
5. It must not be imported by mail order. In this case, an adult buyer (importer) is not subject to penalty if he himself has no intentions of further dissemination it to others or minors.
6. It must not be advertised or announced in a place where the announcement or advertisement could be seen by minors.
7. If it is for one of the above six causes, production, acquiring, and holding in store are subject to penalty, too.

The indexed content of lists A and C can, however, be advertised and sold to adults on the internet, if it is technically ensured that minors do not have access to the content (closed user groups). Media on lists B and D may be disseminated under the aforementioned conditions, however, they not to be distributed through a broadcasting system, including the internet.

It is a matter of dispute whether criticism or discussion of indexed works is allowed in works that are accessible to young people. Public prosecutors have not been unanimous in this regard, but publishers tend to err on the side of safety: In the German version of Marc Saltzman's Game Design: Secret of the Sages, for example, the titles of indexed games were replaced by random strings matching only first letter and length.

Pornographic content on the internet is legal only if technical measures prohibit minors from getting access to the object (AVS = Age Verification System or Adult-Check-System).

Rammstein and the Index

2007

In 2007 a worker at a District Youth Care handed in requests for all releases of the band, stating that the lyrics would glorify violence, were obscene and sexually humiliating. After a Gremium checked into the albums, they were not of the same opinion as the applicant. Therefore the inspection was cancelled on 10 October 2007.

2009

The song Ich tu dir weh was indexed in 2009, with taking action of the decision on 11 November 2009. Besides the song also a photograph in the booklet had to be removed (Richard with the woman over his knees). Some members of the Panel also thought the song Pussy was to be animating to have unprotected sex. But that song was never part of indexing the album. The request was handed in by the German Bundesministerium.

After being indexed, the band took the case to court. In a decision on 1 June 2010, the court argued, that the BPJM did not juxtapose enough between the protection of minors and the freedom of art. Also, they argued that some of the mentioned torturings were unrealistic and impossible, citing the lines "Stacheldraht im Harnkanal" and "Führ dir Nagetiere ein". Also, the photo was not found to be glorifying violence against women. Therefore the album was de-indexed on 1 June 2010.

In March 2016 the band sued Germany for indexing the album. The lawyer said that 84,000 copies of the album were shipped back to the label April of which 55,000 pieces were destroyed. Therefore the band sued Germany for a compensation of 66,000 €. The Landgericht Bonn said that there was no need to destroy so many copies of the album and offered them a compensation of 15,000 € and an apology by the BPJM.