Michael's blog ^pro

In the debate on access restrictions for German users Flickr has now announced to allow access to "moderate" content for users. "Restricted" pictures remain blocked for now. Flickr has also finally clarified that their concerns were rooted in the provisions of the JMStV (www.artikel5.de/gesetze/jmstv.html).

www.flickr.com/help/forum/en-us/43626/

I already wrote some of this on the official flickr thread a few days ago but hey, I have to fill the blog somehow.

Before the JMStV it was legally impossible to offer hardcore pornographic content via TV or Internet in Germany. This law allowed this for the first time while defining age verification requirements and setting up a commision to oversee the execution of the law. (The comission also operates www.jugendschutz.net with further info).

It took a while for the operators to come up with compliant systems but now after a few years a variety of operators (TV and Internet) offer pornographic content in ways that have been approved by said commission.

The specific situation with Flickr

Flickr at some point made a decision to open shop in Germany. They concluded in that process that they are subject to the above law. They stated in their responses that they made a hard choice between setting up shop while restricting content and not setting up shop. An alternative that apparently did not cross their mind would have been to first develop a system to comply with the legal framework and only then go into Germany.

Setting up shop in Germany serves primarily the aquisition of new customers and the management of the newly merged Yahoo Photo service. Most existing German Flickr customers seem to agree that this action provides little benefit to them.

So Flickr had the choice between more profit for Flickr and full access for German users. By extension the same applies to the situation in Singapore, Hong Kong and Korea.

The attempt to blame German laws is a smokescreen, since Flickr always had the options of staying out of Germany or to comply with German law. The latter is a bit more complicated and includes some uncertainties, but the former was always available to Flickr.

What is the situation now after the dust settled a bit?

I cannot see how any of the measures taken by Flickr make them compliant with the actual law. There are at least three flaws in their technical solution:

1. Minors can still gain access to the full content via non-DE accounts. Supposedly AT or CH accounts will do the job while even offering full German UI.
2. User content classification is unreliable since not all users classify properly. At the point where a Flickr team member re-classifies a picture it is too late. At the point where they re-classify Flickr has already been violating the law for some time and lawyers in a criminal lawsuit would present snapshots to prove that.
3. User content classification relies on the user's perception what is "restricted" and not how the German law defines restricted content.
   
   As a side note I wasn't aware that the JMStV extended much further than just pornography. But it actually does (see §4 www.artikel5.de/gesetze/jmstv.html#p4). I had also supported the idea that "moderate" level would be safe for Germany but the law is very broad so this is probably not sufficient.

Now what would be a legally compliant solution?

frankly I don't know. Maybe I'll write up some thoughts on that in a later post.