TL;DR at the end of the article.
The funk media group (joint production of ARD and ZDF) published an online browser game called „Bundesfighter II Turbo“ for the 2017 federal elections. The game is a fighting game and, as fighters (player characters), represents various top politicians of the parties running for election at the time. The free browser game was intended, among other things, to encourage internet-affine first-time voters or even politically disenchanted young people to vote. While you let the comically exaggerated politicians compete against each other, you can also perform jump attacks in addition to punches and kicks. The AfD (Alternative for Germany) character Gauland undertakes the second of his jump attacks by crossing legs and arms to form a mirrored swastika.
This publication is accompanied by the first known decision of a (Attorney General’s) Public Prosecutor’s Office not to investigate a case of § 86a StGB in a game.
The legal situation
The representation of anti-constitutional symbols, such as the swastika, is generally not permitted in games according to a 1998 judgement of the Frankfurt Higher Regional Court, since according to the judges of the time this was contrary to the protective purpose of § 86a StGB. The judges disregarded the exceptions in the social adequacy clause, e.g. for art and similar purposes, because they saw a distribution of games – such as toys (aircraft models) – to children and young persons as a real danger to society. They feared a “familiarisation effect” that would make it impossible to ward against anti-constitutional ideologies. During the proceedings at the time, no second thought was given to the context of the use case – for example in games with an enlightening background – or the judges simply could not imagine such a use in games, in appreciation of the then still young medium and the “unbelievable realism” of “Wolfenstein 3D”.
Based on this jurisprudence, no manufacturer can openly publish a game with anti-constitutional symbols in Germany – even those of a satirical or enlightening nature – without fear of imprisonment and fines.
With this signed request the valid Principles and services and examination fees of the Unterhaltungssoftware Selbstkontrolle are accepted. The applicant assures that the title does not contain unconstitutional symbols according to §86, 86a of the German penal code.
– Declaration in the testing application of USK
The USK does not accept such games for examination, since it cannot release them without the blessing of the North Rhine-Westphalian Ministry for Family Affairs or without the vote of the Permanent Representatives of the Supreme State Youth Authorities at the USK. Administrative acts may not violate applicable legal situations or laws (cf. § 44 para. 1 VwVfG), otherwise the release would be void, which would result in a public relations nightmare for the USK and the Supreme State Youth Authorities.
(1) An administrative act shall be void where it suffers from a particularly serious error and where this is obvious with a reasonable assessment of all the circumstances concerned.
– § 44 para. 1 VwVfG
The Ministry for Family, Children, Youth, Culture and Sport of North Rhine-Westphalia, which is in charge of the rating process, thusly has no space to maneuver (from minute 9 in the Runaways interview with Marek Brunner, cf. item 6 in the for UNCUT! article on the topic). A reassessment of the situation would require a new court ruling setting out criteria that make the use of symbols in video games legal. However, a court intervenes only after publication and a previous investigation – without a corresponding publication, the subject was legally untouched for decades. The legal opinion of experts is already much further progressed on the topic, the judgement at that time was already described among other things as gross “malpractice“. Felix Falk, managing director of the industry association BIU, recently called on the authorities to adjust their outdated legal position.
Changing the legal situation
Since gamers, publishers (see interview in PC Games), legal experts and also political representatives wish to alter the legal situation to reflect the current legal understanding, the publication of Bundesfighter II provided an opportunity to initiate legal proceedings. After all, funk had behaved illegally according to the past iurisdiction, the developers, however, smirkingly stood by their publication and would be able to assert themselves in a legal proceeding accordingly. Funk, as a public broadcasting service, is financed by general broadcasting licenses and thus by the general public. A member of VDVC took the initiative following the publication of the game and filed a criminal complaint with the Public Prosecutor’s Office in Berlin. This complaint was forwarded to the Public Prosecutor’s Office in Stuttgart, since funk is represented by Südwestrundfunk.
The Public Prosecutor’s Office is not investigating the case.
A few weeks later the complainant received a message from the Public Prosecutor’s Office stating that no preliminary proceedings were being initiated, although the public prosecutor also clearly recognized a (mirrored) swastika in the use of the symbol. The public prosecutor justified the refusal to undertake investigations with the fact that there was no legal basis for any investigations (cf. § 152 para. 2 StPO). The online game were covered by the justifications of the social adequacy clause and is therefore not punishable. According to the Public Prosecutor’s Office, the publication clearly serves “both the arts and civic enlightenment”. It were irrelevant whether digital games are basically art or not, “Bundesfighter II Turbo” is thought not to be a “normal game” in this case. It were satire in the form of an online game with exaggerated characters and representations. The fact that the publication was made by a public broadcasting company would also indicate that the protective purpose of § 86a StGB was not affected. If the publication had taken the form of a television report, this would also be possible without infringement of the law. Additionally, according to the Public Prosecutor’s Office in Stuttgart, the time of publication plays a role of its own: the reference in the game “Don’t forget to vote” is to be assigned to the area of political (opinion) education and civic enlightenment.
An appeal was lodged against the decision
This reasoning of the Public Prosecutor’s Office is diametrically opposed to the current legal situation. The complainant therefore complained to the Barber accident lawyers and Attorney General’s Office against this decision. As justification for the complaint, he argued that the Public Prosecutor’s Office were obliged to investigate by the legal situation created by the Higher Regional Court Frankfurt 20 years ago (case no.: 1 Ss 407/97). Social adequancy grounds could not be cited as justification for games, the complainant argued. It were also irrelevant, whether the game was published by public broadcasting company or someone else. It were an online game and cannot be labelled “not a normal game” just because it uses satire to convey its message. In addition, the parties involved in the approval process (USK and BPjM) adhered to the existing legal situation – funk had simply sidestepped this process entirely.
The Attorney General’s Office also considers the case closed
In the present case, therefore, the Attorney General’s Office had to decide, whether it should repeal the order of the Public Prosecutor’s Office and urge it to start investigations. However, the Attorney General’s Office, too, decided to uphold the decision (case no. 14 Zs 21/18). The senior public prosecutor in charge of the case stated that the current legal situation was “outdated” and referred to the latest literature on the subject (cf. Schwiddessen, Computer und Recht, volume 31, issue 2/2015, pages 92-126). In addition, the judgment of the Higher Regional Court of Frankfurt were passed at a time when the rating system of the USK had not yet been established as legally binding and since then the preliminary review of games under criminal law has always been undertaken during the rating process before publication. This were an “effective supervisory body”, according to the decision.
Furthermore, one must consider that at the time of the judgement the developer association GAME e.V. had not yet been founded – GAME was added as member into the German Cultural Council in 2008 and thus digital games are to be regarded as art on principle. The Federal Department for Media Harmful to Young Persons (BPjM) also regularly examines the social adequancy justification grounds in § 86 para. 3 StGB before adding a game to the index. This somprehensive system would have probably put an end to the fears of the judges at the time.
According to § 152 Paragraph 2 of the Code of Criminal Procedure, the investigating authority is therefore only bound by the applicable law and not by outdated case law (jurisdiction). The “overall consideration between the legal interests of the democratic constitutional state protected by § 86a StGB (Article 20 para. 3 GG [Constitution]) and public (political) peace on the one hand and the freedom of art pursuant to Article 5 para. 3 GG and the objective of promoting voter turnout named by the creator of the game (Article 38 GG) […] [on the other side] would also come [….] to no other result“.
Where do we go from here?
The old court ruling preventing the application of the social adequancy claus for digital games therefore is not off the table completely. But the decision of the Attorney General’s Office can be seen as an important signal. Hardly any investigative authority is likely to support the generalising view of the judges at the Frankfurt Higher Regional Court from back in the days. The question arises as to how a game with setting in the Third Reich can be legally published in order to serve, for example, enlightenment, satire or art. The BPjM would most likely already consider this decision to be a sufficient signal for an ex officio transfer from Part B (criminal relevance) to Part A (no criminal relevance) of the list of indexed games. In principle, however, the BPjM has never indexed games because of the socially adequate use of anti-constitutional symbols (§ 86a StGB is not an indexing criterion according to § 18 Paragraph 2 No.2 JuSchG – Youth Protection Act). It is, however, hardly possible for outsiders to judge whether the NRW Ministry of Family Affairs or the Permanent Representatives at USK see this signal as trend-setting (cf. also interview by Runaways with Marek Brunner – from minute 8 onward).
To be absolutely sure, a publisher would have to submit a game with these symbols to the USK for testing. If the Permanent Representatives block its release, the way for legal action is open in form of a suite to grant a rating in a court of administrative law. It should also be possible to reach a decision on a supreme level at the BVerwG relatively quickly. The submitting publisher is not liable to prosecution by submission to a rating agency alone. A ruling of the Federal Constitutional Court (BVerfGE 87, 209) made it clear that the submission of a medium for self-regulation in order to obtain a ranking by the USK cannot be used as an occasion to trigger early criminal prosecution, since the publication has not yet taken place. Confiscation of a medium submitted for examination would be pre-censorship of the state prohibited by the Constitution. The same would apply to a thwarted submission (cf. USK examination application).
Curiously, in the 1990s the Federal Ministry for the Interior itself published two games “Dunkle Schatten 1 &2”. They also contained anti-constitutional symbols that served as educational content against right-wing extremist alliances. Against the background of the 1998 ruling, these state enlightenment measures now also appear somewhat strange.
Bundesfighter II Turbo was published as a browser game and showed a representation similar to the swastika, which would be prohibited after an outdated court decision of 1998. However, the Public Prosecutor’s Office in Stuttgart is not conducting any investigations, since the game is covered by the art exception in the ban and thus is likely using unconstitutional symbols within the legal framework.