USK Insists on Proportionality Principle and Right to Digital Participation

The USK has published its statement on the planned EU guidelines for the protection of minors online. The USK addresses three fundamental issues as well as the positive experiences with the protection of minors in games in Germany and points out a possible fundamental conflict with the GDPR.

At the end of July, the European Commission called for feedback on the planned guidelines by September 30 as part of a call for evidence. These guidelines are intended to provide a framework for how digital platforms must implement the protection of minors under the Digital Services Act (DSA) in the future. The Unterhaltungssoftware Selbstkontrolle (USK;  Entertainment Software Self-Regulation Body), which is responsible for the age ratings of games in Germany, not only confirmed that it has also issued a statement, but also published its full statement now.

The USK draws particular attention to three areas. At the EU level, the USK believes that the key approach should be to take into account the principle of proportionality. This means that the measures should be all the more stringent the higher the potential risk. Therefore, in the opinion of the USK, not only should age verification systems be used, but also more differentiated approaches that are dependent on the harmfulness of the digital content. The USK refers here to parental control tools, such as the solutions in game consoles. In this context, the USK specifically mentions Microsoft and Nintendo, both of which have had their solutions tested and certified by the USK specifically according to the legal criteria applicable in Germany.

The second important point is a holistic approach to protection: digital participation and the well-being of the child must be weighed up alongside risk minimization. In this context, the USK refers to the childrens right to participate in the digital environment, which is protected by the German constitution.

The USK also sees an urgent need for "age verification" to be clearly defined at EU level. According to the USK, there is a great deal of variation in the way the term is understood internationally. In Germany, for example, the requirements are very strict and specific. The differences in national frameworks could lead to significant discrepancies on the interpretation of guidelines and, as a result, to legal uncertainty.

In addition to these three main points, the USK also highlights further problem areas in its statement and makes recommendations from a practical point of view, as requested by the EU Commission. The USK reports on the incentives provided by the German legislature for cooperation with voluntary self-regulation bodies. These include, for example, the legally regulated and protected scope for assessment enjoyed by institutions such as the USK. This helps developers and publishers to better estimate the expected age rating in advance. Institutions like USK also have departments that deal with user complaints and are themselves supervised by the German media regulatory authority.

In connection with age verification systems, the USK points out a possible fundamental conflict within EU law in a very specific case. In the opinion of the EU Commission, the guidelines should also apply to online platforms that are aimed at adults but are also used by minors due to “insufficient or non-existent tools for age verification”. To put it simply, in the opinion of the USK, the EU Commission deviates from the requirements (recital 71) in the DSA with this wording. However, since those requirements were formulated according to the principle of data minimization of the GDPR, the guidelines could, in the opinion of the USK, cause those online platform providers to store, acquire and process more data than they already have in order to assess whether the user concerned is a minor.