210
AdAptAtion in the Age of MediA ConvergenCe
The legal basis for institutional narrative filtering of video games in
Germany lies in limitations to the right to freedom of expression granted
by article 5 of the Basic Law (Grundgesetz) provided by, among others, the
Criminal Code (Strafgesetzbuch, hereafter StGB), as well as the Protection
of Young Persons Act (Jugendschutzgesetz, hereafter JuSchG). 27 All data
Nazi Vampire of Absam 2.” The holder of the rights of the Wolfenstein franchise, id Software,
approved the movie’s use of elements of the franchise.
27 Basic Law, GG, Federal Ministry of Justice (2014), accessed March 25, 2015, www.gesetzeim-internet.de/englisch_gg/; German Criminal Code, StGB, Federal Ministry of Justice (2013),
accessed July 11, 2013, www.gesetze-im-internet.de/englisch_stgb/; Protection of Young Persons
Act, JuSchG, Federal Ministry of Family Affairs, Senior Citizens, Women and Youth, accessed
July 11, 2013, www.bmfsf j.de/RedaktionBMFSFJ/Abteilung5/Pdf-Anlagen/juSchGenglisch,p
roperty=pdf,bereich=bmfsf j,rwb=true.pdf. Article 5, paragraph 1 of the Basic Law describes
the right to freedom of expression, forbidding censorship (my emphases): “Every person shall
have the right freely to express and disseminate his opinions in speech, writing, and pictures and
to inform himself without hindrance from generally accessible sources. Freedom of the press
and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall
be no censorship.” The “censorship” precluded here means censorship of products before their
publication and distribution, i.e. pre-censorship. Content control after a medium’s publication
(i.e. post-censorship) is made possible by article 5, paragraph 2, which states the limitation of the
freedom of expression by provisions of further laws. Art, however, is attributed especially high
value in this context: “Art and scholarship, research, and teaching shall be free” (paragraph 3). The
conclusion might lie close at hand that, if video games were considered pieces of art in judicature,
they would be granted special protection under German basic law (Michael Köhne, “Kennzeichen
verfassungswidriger Organisationen in Computerspielen,” Deutsche Richterzeitung 81 (2003)).
Subsequently, Nazi Symbols forbidden in Germany would be no issue for selling Wolfenstein
games in Germany. However, judicature applies an “open” or “formalistic concept of art” instead
of a “material concept of art” (Thomas Fischer et al., Strafgesetzbuch und Nebengesetze, 58th ed.,
Beck’sche Kurz-Kommentare 10 (München: Beck, 2011), 775, § 86, no. 21). In order to delimit what
is considered art in terms of Article 5, paragraph 3 of the Basic Law, the formalistic concept
of art examines the production process, the design and the composition of the media product
in question. Legal studies explicitly note that it is hardly possible to differentiate between
movies and video games based on the formalistic legal concept of art due to media convergence
(Medienkonvergenz; Marc Liesching, “Hakenkreuze in Film, Fernsehen und Computerspielen:
Verwendung verfassungsfeindlicher Kennzeichen in Unterhaltungsmedien,” Multimedia und
Recht 13, no. 5 (2010): 311; Kauert, “Computerrecht – Computerspiele,” 2:572, paragraph 177). Media
convergence in the formalistic understanding pertains to the production process of the media
product in question. There is no difference between movies and video games when comparing
investment sums, the number of workers, and the professions involved in the production of
these media types (Liesching, 311; Köhne, 211–212). More importantly, the individual assessment
of media products following the formalistic concept of art entails the legal rationale that the
freedom of art according to article 5 of the Basic Law does not take precedence over the art’s
content being punishable (Fischer et al., Strafgesetzbuch und Nebengesetze, 1235, § 184, no. 8).
Instead, a holistic assessment (Gesamtabwägung) of the individual media product in question
is conducted (ibid., 775, § 86, no. 21). It is noteworthy that an inflationary use of forbidden
symbols, as can be found in most of the Wolfenstein games, might be considered as not being “in
AdAptAtion in the Age of MediA ConvergenCe
The legal basis for institutional narrative filtering of video games in
Germany lies in limitations to the right to freedom of expression granted
by article 5 of the Basic Law (Grundgesetz) provided by, among others, the
Criminal Code (Strafgesetzbuch, hereafter StGB), as well as the Protection
of Young Persons Act (Jugendschutzgesetz, hereafter JuSchG). 27 All data
Nazi Vampire of Absam 2.” The holder of the rights of the Wolfenstein franchise, id Software,
approved the movie’s use of elements of the franchise.
27 Basic Law, GG, Federal Ministry of Justice (2014), accessed March 25, 2015, www.gesetzeim-internet.de/englisch_gg/; German Criminal Code, StGB, Federal Ministry of Justice (2013),
accessed July 11, 2013, www.gesetze-im-internet.de/englisch_stgb/; Protection of Young Persons
Act, JuSchG, Federal Ministry of Family Affairs, Senior Citizens, Women and Youth, accessed
July 11, 2013, www.bmfsf j.de/RedaktionBMFSFJ/Abteilung5/Pdf-Anlagen/juSchGenglisch,p
roperty=pdf,bereich=bmfsf j,rwb=true.pdf. Article 5, paragraph 1 of the Basic Law describes
the right to freedom of expression, forbidding censorship (my emphases): “Every person shall
have the right freely to express and disseminate his opinions in speech, writing, and pictures and
to inform himself without hindrance from generally accessible sources. Freedom of the press
and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall
be no censorship.” The “censorship” precluded here means censorship of products before their
publication and distribution, i.e. pre-censorship. Content control after a medium’s publication
(i.e. post-censorship) is made possible by article 5, paragraph 2, which states the limitation of the
freedom of expression by provisions of further laws. Art, however, is attributed especially high
value in this context: “Art and scholarship, research, and teaching shall be free” (paragraph 3). The
conclusion might lie close at hand that, if video games were considered pieces of art in judicature,
they would be granted special protection under German basic law (Michael Köhne, “Kennzeichen
verfassungswidriger Organisationen in Computerspielen,” Deutsche Richterzeitung 81 (2003)).
Subsequently, Nazi Symbols forbidden in Germany would be no issue for selling Wolfenstein
games in Germany. However, judicature applies an “open” or “formalistic concept of art” instead
of a “material concept of art” (Thomas Fischer et al., Strafgesetzbuch und Nebengesetze, 58th ed.,
Beck’sche Kurz-Kommentare 10 (München: Beck, 2011), 775, § 86, no. 21). In order to delimit what
is considered art in terms of Article 5, paragraph 3 of the Basic Law, the formalistic concept
of art examines the production process, the design and the composition of the media product
in question. Legal studies explicitly note that it is hardly possible to differentiate between
movies and video games based on the formalistic legal concept of art due to media convergence
(Medienkonvergenz; Marc Liesching, “Hakenkreuze in Film, Fernsehen und Computerspielen:
Verwendung verfassungsfeindlicher Kennzeichen in Unterhaltungsmedien,” Multimedia und
Recht 13, no. 5 (2010): 311; Kauert, “Computerrecht – Computerspiele,” 2:572, paragraph 177). Media
convergence in the formalistic understanding pertains to the production process of the media
product in question. There is no difference between movies and video games when comparing
investment sums, the number of workers, and the professions involved in the production of
these media types (Liesching, 311; Köhne, 211–212). More importantly, the individual assessment
of media products following the formalistic concept of art entails the legal rationale that the
freedom of art according to article 5 of the Basic Law does not take precedence over the art’s
content being punishable (Fischer et al., Strafgesetzbuch und Nebengesetze, 1235, § 184, no. 8).
Instead, a holistic assessment (Gesamtabwägung) of the individual media product in question
is conducted (ibid., 775, § 86, no. 21). It is noteworthy that an inflationary use of forbidden
symbols, as can be found in most of the Wolfenstein games, might be considered as not being “in