There’s plenty of “fair use” cases which would allow it.
§86a STGB allows for the use of “symbols of anti-constitutional organizations” in cases of:
art (e.g. the movie “Downfall”)
scientific research
education
news or other broadcast (covering Nazi Protests in the US for example, German news station don’t have to censor the Swastika flags or the like)
And probably applying in this case - in protesting said anti-constitutional organizations, for example a crossed out Swastika as a form of protest against Nazis is still very much legal.
Most important is the intent. If you plan to use those symbols with the intent of furthering the ideology of anti-constitutional organizations, it is probably forbidden. The intention has to be clearly against those organizations, otherwise it might be actionable.
Btw the communist party of Germany, the KPD is also considered an anti-constitutional organization and therefore it’s symbols are forbidden in the same way.
§86a STGB allows for the use of “symbols of anti-constitutional organizations” in cases of:
art (e.g. the movie “Downfall”)
scientific research
education
news or other broadcast (covering Nazi Protests in the US for example, German news station don’t have to censor the Swastika flags or the like)
Which is funny because the video game series Wolfenstein famously had to change all of their in-game imagery. The series is about killing Nazis, but it was banned in Germany until the game devs removed all of the swastikas. Because apparently showing the swastika is banned, even when it’s used explicitly to say “these are the bad guys.”
Yeah, there were some real conservative views on what counts as art or education and what does not that influenced that decision I figure.
It’s silly regardless on both sides in my personal view. Like yeah it’s a little silly to not allow it, since the law would easily have allowed for it but also - it’s a Swastika, I’m fine in a video game without it, I’m not gonna die on that specific hill for sure.
The German bureaucracy changed their stance from “Nazi shit should not be in games, period” to “it depends on social adequacy” which meant that games from then on where handled the same way as other forms of art.
Game publishers could’ve changed it way earlier but noone bothered to bring a case to court but opted to self-censor instead, thus the BPjM had to follow an age-old, singular, court ruling.
The game that prompted the change was this one, in particular Gauland’s special move is a swastika. Someone, predictably, complained, and the case didn’t even make it before court as the state attorney said “this is obviously completely legal political commentary”.
Does “anti-constitutional” mean against the German constitution specifically, or the concept of constitutions? If the former, prohibiting ideas of government other than the active one is a pretty strict restriction on speech. I totally get the desire to outlaw imagery supporting Nazism because no one wants that shit to come back, but lumping communism in there too seems a bit strange. Or maybe I’m just totally misunderstanding what you said.
In addition to what others have commented, communist and all other flavors of political parties are protected under the german constitution as long as they aren’t anti-democratic or call for violations of basic human rights. That’s because the right to form a party and express your political opinion is also protected in the constitution. So ironically it is really hard to ban fascist parties because the highest court would have to prove that their exercising their freedom to form a political party is in conflict with other basic rights and freedoms.
Does “anti-constitutional” mean against the German constitution specifically, or the concept of constitutions?
Specifically the German constitution.
Or as also worded in the law “the free democratic basic order of the FRG” -“die freiheitlich demokratische Grundordnung der BRD”.
What this phrase means specifically is defined by decisions of the federal constitutional court and includes things like basic human rights, checks and balances, the independence of courts, the multi party system etc.
Disrupting or trying to abolish those basic democratic laws is considered as trying to build a dictatorship or other form of unjust system.
I don’t know the specifics about the KPD case but there are German communist parties, for example the DKP. It’s just that the KPD is considered undemocratic.
The KPD in particular got banned for wanting to topple the government by force, also, they took their orders from Stalin. Being a communist as such is far from anti-constitutional, the German constitution was specifically written to be compatible, but it’s going to have to be democratic market socialism. What you want to do is heavily lean on Article 14(2): “Property entails obligations. Its use shall also serve the public good.” You can expropriate means of production by mere preference, without having to show that it’s for the public good.
There’s plenty of “fair use” cases which would allow it.
§86a STGB allows for the use of “symbols of anti-constitutional organizations” in cases of:
And probably applying in this case - in protesting said anti-constitutional organizations, for example a crossed out Swastika as a form of protest against Nazis is still very much legal.
Most important is the intent. If you plan to use those symbols with the intent of furthering the ideology of anti-constitutional organizations, it is probably forbidden. The intention has to be clearly against those organizations, otherwise it might be actionable.
Btw the communist party of Germany, the KPD is also considered an anti-constitutional organization and therefore it’s symbols are forbidden in the same way.
Which is funny because the video game series Wolfenstein famously had to change all of their in-game imagery. The series is about killing Nazis, but it was banned in Germany until the game devs removed all of the swastikas. Because apparently showing the swastika is banned, even when it’s used explicitly to say “these are the bad guys.”
Games (until recently?) were not considered as art by the courts in Germany.
“Are we the baddies?”
“I dunno, our gear looks okay now?”
Yeah, there were some real conservative views on what counts as art or education and what does not that influenced that decision I figure.
It’s silly regardless on both sides in my personal view. Like yeah it’s a little silly to not allow it, since the law would easily have allowed for it but also - it’s a Swastika, I’m fine in a video game without it, I’m not gonna die on that specific hill for sure.
You wouldn’t even have to die on that hill anymore because you can buy the uncensored wolfensteins in Germany today.
Yes! Interestingly, this only is possible now because the rules changed in 2018: https://usk.de/usk-beruecksichtigt-bei-altersfreigabe-von-spielen-kuenftig-sozialadaequanz/
The German bureaucracy changed their stance from “Nazi shit should not be in games, period” to “it depends on social adequacy” which meant that games from then on where handled the same way as other forms of art.
Game publishers could’ve changed it way earlier but noone bothered to bring a case to court but opted to self-censor instead, thus the BPjM had to follow an age-old, singular, court ruling.
The game that prompted the change was this one, in particular Gauland’s special move is a swastika. Someone, predictably, complained, and the case didn’t even make it before court as the state attorney said “this is obviously completely legal political commentary”.
To top it all off the game was published by public TV. Same people who made this sketch.
Haha I hadn’t seen that game before, thanks for that. Gauland is depicted exactly as ridiculous as he should be treated.
Ah, thanks for the context, didn’t know that. Browser Ballett is awesome.
Does “anti-constitutional” mean against the German constitution specifically, or the concept of constitutions? If the former, prohibiting ideas of government other than the active one is a pretty strict restriction on speech. I totally get the desire to outlaw imagery supporting Nazism because no one wants that shit to come back, but lumping communism in there too seems a bit strange. Or maybe I’m just totally misunderstanding what you said.
In addition to what others have commented, communist and all other flavors of political parties are protected under the german constitution as long as they aren’t anti-democratic or call for violations of basic human rights. That’s because the right to form a party and express your political opinion is also protected in the constitution. So ironically it is really hard to ban fascist parties because the highest court would have to prove that their exercising their freedom to form a political party is in conflict with other basic rights and freedoms.
Specifically the German constitution. Or as also worded in the law “the free democratic basic order of the FRG” -“die freiheitlich demokratische Grundordnung der BRD”.
What this phrase means specifically is defined by decisions of the federal constitutional court and includes things like basic human rights, checks and balances, the independence of courts, the multi party system etc.
Disrupting or trying to abolish those basic democratic laws is considered as trying to build a dictatorship or other form of unjust system.
I don’t know the specifics about the KPD case but there are German communist parties, for example the DKP. It’s just that the KPD is considered undemocratic.
The KPD in particular got banned for wanting to topple the government by force, also, they took their orders from Stalin. Being a communist as such is far from anti-constitutional, the German constitution was specifically written to be compatible, but it’s going to have to be democratic market socialism. What you want to do is heavily lean on Article 14(2): “Property entails obligations. Its use shall also serve the public good.” You can expropriate means of production by mere preference, without having to show that it’s for the public good.
Communism?
Anti-constitutional here means directed against the Basic Law of the FRG or the constitution of Brandenburg (federal state).
The Basic Law does not explicitly ban socialism, AFAIK.
The ban on Nazi imagery is kind of necessary for a state patched together in the post-liberation Allied occupation.