Wolfgang Schulz and Stephan Dreyer are very critical of the draft discussion paper for a new Interstate Treaty on the Protection of Minors in the Media. The concept of a "youth protection device" at the operating system level presented in the draft, a kind of child protection mode that can be activated, seems very costly and complex compared to the expected implementation and its effects. Legally and technically, the draft has many problematic aspects.
From the Introduction
In April 2022, the Broadcasting Commission of the German Federal States presented a discussion draft for the amendment of the Interstate Treaty on the Protection of Minors in the Media (JMStV). The Leibniz Institute for Media Research | Hans Bredow Institute (HBI) takes the opportunity of the currently ongoing consultation phase to comment on the draft. As a media research institute that has been actively involved in the media policy and legal discourse on the protection of children and young people from harmful media for many years with conceptual contributions, legal opinions and empirical research, the HBI is happy to contribute its expertise to the consultation process.
In general, the HBI welcomes further development of the existing regulatory framework for the protection of minors from harmful media through legal reforms. These reforms should (a) push the convergence and coordination of the two regulatory frameworks at the federal and state levels, (b) respond to new challenges posed by new media offerings and players, current forms of media use by children and young people, and cross-border issues within the bounds of what is legally possible and reasonable, and (c) take into account specific requirements and aspects relating to children's rights.
In both academic and media policy discourse, it has been clear for more than ten years that the meta-challenges lie in the regulatory consideration of
- the design of a dynamic system for the protection of minors from harmful media that is able to deal flexibly with constant changes on the side of both services and users,
- the multiplication, expansion and differentiation of risks and their origins, which may require different regulatory approaches in some cases,
- the differentiation of risks on the part of children and the different risk variance depending on age,
- the acceptance of decreasing levels of protection in cases where children and adolescents deliberately seek to transgress boundaries,
- the growing number of providers and their heterogeneous structures, forms of organization and interests,
- the possibilities of (re)enabling guardians to take on educational responsibility, for example by making more information and technical tools available,
- the possibilities of digitizing instruments for the protection of minors, i.e., examining the transferability of previous protection instruments to comparable technical functionalities (e.g., electronic, machine-readable age labels), as well as
- the cross-border characteristics of media products, content and communication services and the associated need for supranational cooperation.
The present draft addresses these challenges to the protection of minors from harmful media only in part and, in this case, primarily with prohibition-oriented, classic control approaches.
The draft does not take into account that there has not only been a differentiation of types of services, practices of use and risk phenomena, but also a clear increase in the importance of children's rights. It seems to be stuck in the exclusively protection-related control considerations of the JMStV of 2002. The draft reform does not include empowerment as enabling communicative participation, forms of improving protection and self-protection in the case of risks due to highly personal communication environments or due to custodial approaches, which open up a wide range of improvement and protection measures for providers depending on the offer, user group and functionalities, nor does it include participatory approaches.
However, considering children's rights is not at the discretion of the legislature. It is rather an obligatory consequence of the legal framework on a sub-constitutional level, which comes from international law. It is also based on an understanding of the Convention on the Rights of the Child as a guideline for the constitutional mandate to protect minors, which is to be read with regard to the requirement of an interpretation that is friendly to international law.
In addition to the principle of the best interests of the child, the legislature must (also) take the will of the child into account (Art. 12 UNCRC). Both requirements have to be met in terms of the content and procedure for the introduction of new legal provisions, insofar as the concerns of children and adolescents are affected.
