Killed the internet LAN parties
For Jörn Löpelmann, operator of the internet café 'pLANet-GAMES' in Berlin, the matter is almost unbelievable: 'Although we offer our visitors the opportunity to play with the computers available, we make sure that there are no indexed titles and also ensure compliance with the USK recommendations. Although many of our visitors use the Internet for research purposes and to send e-mails or simply come to us to socialize, the shop has been closed for us because we are an arcade. Other internet cafés are still open, even if the operators don't take compliance with USK requirements as seriously as we do. "
In fact, the Berlin authorities are currently cracking down on Internet cafes. Internal instructions request the authorities to check the relevant locations. According to the authorities, an operation similar to a gambling hall - and therefore requiring a permit - should exist if the existing computers are not connected to the Internet, but are only connected to one another via a local network. Even if no such determination can be made, the authorities are required to closely monitor compliance with the catering regulations, especially in Internet cafés. This severely restricts the stay of young people unaccompanied by adults.
The individual district offices of Berlin seem to respond to this request with varying degrees of enthusiasm. In some districts - as far as is known - no Internet café has yet been closed or even checked, other district offices have issued prohibition orders, in some cases even without having visited the businesses concerned beforehand. Other operators get a visit from a 30-man official inspection team.
Possibly because of the rampage in April at the Gutenberg-Gymnasium in Erfurt, it is probably a particular thorn in the side of the authorities when they discover that Counter-Strike is being played in the controlled cafés. Even if its German version was expressly not indexed by the Federal Testing Office for writings harmful to minors, the Tempelhof-Schöneberg District Office, for example, criticizes the fact that an operator leaves Counter-Strike unopposed. How little some authorities are in the picture about the problem is also shown by the fact that not even statements are made about which version of Half-Life or Counter-Strike was played at all.
Some operators of Internet cafés suspect that the authorities have a different motivation behind the scenes: some Internet cafés are also trading centers for drugs. Because the evidence is difficult to provide, you do not check according to the Narcotics Act, but rather issue a supposedly easier to justify prohibition order due to a lack of gaming hall permission.
However, it is doubtful whether such a prohibition order is lawful. The playful hustle and bustle in Internet cafés can have serious consequences for their operators if the operation is to be regarded as a ‘amusement arcade or similar company’. In addition to the trade registration, a separate permit from the trade office is required for such activities (Section 33 i Trade Regulations). If such a permit is missing, the café concerned can be closed (Section 15 (2) Trade Regulations). However, it is not certain whether an Internet café will become an amusement arcade or a similar company simply because the visitors have fun with Counter-Strike & Co.
A look at the law speaks against the interpretation of the Berlin authorities. Companies similar to amusement arcades are defined by law as those which ‘serve exclusively or predominantly to set up gaming equipment’. First of all, a PC can hardly be called a gaming device, as it offers numerous other possible uses. However, it is doubtful whether it is sufficient for classification as a gaming device if a PC is used to a significant extent or predominantly.
Some authorities even assume that it is sufficient if there are games installed on the computer to turn it into a gaming device. That can hardly be correct, because on the one hand, web-based games in particular can also be run without an installation process, and on the other hand, Windows is known to install entertainment software on the hard drive by default. If one were to assume that universally usable computers can also be viewed as play equipment in the sense of the trade regulations, the main focus of business operations would be in the Internet café.
The Berlin authorities assume that the operation is similar to an amusement arcade if the computers are not connected to the Internet, but only networked via a LAN. Such a finding will indicate that it is not an 'Internet' café, but it can certainly not be more than an indication of the classification as an amusement arcade or an operation similar to an amusement arcade. In order to determine the main focus of activity in the Internet café, it is much more a question of what the users actually do on the computers. Furthermore, a use predominantly for social purposes or for the consumption of food and drinks can speak against classification as an amusement arcade. In the latter case, however, the catering regulations must be observed. Another - unproblematic - way of avoiding the accusation that games are predominantly played in an Internet café is to offer training courses.
Anyone who cannot prove that the focus of the business is on activities other than pure gaming will not necessarily be helped by obtaining a gambling hall license. Even with a commercial license as a gambling hall, youth protection regulations must be observed: Section 8 (1) of the Act for the Protection of Young People in Public (JÖSchG) forbids granting minors access to gambling halls; In the case of a qualification of PCs as ‘electronic screen entertainment games’ according to § 8 Abs. 4 JÖSchG, the visitors must be at least 16 years old. Amusement tax may also apply.
Some authorities are also of the opinion that the recommendations of the entertainment software self-regulation (USK) should be observed. However, this is likely to be incorrect. The USK recommendations are - at least until the new Youth Protection Act comes into force - non-binding recommendations. According to the current legal situation, the only authority that can bindingly determine that young people are at risk is the Federal Testing Office for Writings and Media that are harmful to young people. If a software title is indexed by the Federal Inspectorate, the operator of an Internet café may actually not allow a game classified as harmful to young people to be played in his café.
At the moment, most of the cafes concerned are objecting to the prohibition orders. The objection authority first decides on this. If the opposition authorities decide against the operators of the Internet cafés, they can sue the administrative court. The first judicial ruling on the question of whether and under what conditions Internet cafés require a license as an amusement arcade will be a few months away. Until then, the operators can only hope that there will be no order to enforce the prohibition order immediately or that it will at least be quickly lifted by the administrative court. (jk)
Dr. Andreas Lober is a lawyer in the Mannheim office of the law firm Menold & Aulinger
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