1. German law is not media biased. The ban of unconstitutional symbols applies to movies and video games the same. The social adequacy clause, with all the exemptions to the ban, applies to all types of media too [§ 86a of the German penal code (StGB) in conjunction with § 86 StGB Sec. 3; also the JMStV treaty]. No law has to be changed, the general swastika ban must not be called into question.
2. Video games are art in Germany. Among other courts, the Administrative Court Köln made in a decision over Electronic Arts’ first-person shooter Medal Of Honor clear that games fall under the legally very broad, (open) concept of art. In this ruling, based on the statements of the BPjM, a “low to average degree of artistic content” was attributed. [13.9.2013, Az.: 19 K 3559/11]. The prevailing expert opinion is clear, games can use swastikas legally; it is, however, a case by case decision, just it is with movies in principle. Games never were legally toys.
3. Art is not the only exemption. In addition to research, teaching and civic education, among other things, art is one of the criteria of the social adequacy clause. Moreover, “similar purposes” are also explicitly socially adequate in the case of usual actions, which are approved by the general public and are therefore wholly unsuspicious in social life because they are in the context of social freedom of action. [Federal Court of Justice, 25.07.1979, Az.: 3 StR 182/79 (S)]
4. The ban must be interpreted restrictively. The Federal Supreme Court stated in 2007, in relation to crossed-through swastikas, that in a depiction which content expresses unequivocally opposition to the banned Nazi organizations and their ideology, the relevant law’s ban shall not apply [3 StR 486/06]. In Wolfenstein II: The New Colossus, this ideology is literally fought against in the occupied USA: “Make America Nazi Free Again”. In The Saboteur, the historically occupied France is liberated as a Résistance fighter. In Turning Point: Fall of Liberty, the player fights for survival in an occupied USA and in Europe. All three examples were (self-)censored in Germany. Furthermore, the isolated, sporadic symbol usage also shall often not be covered by the ban.
5. A singular court decision as the basis for a blanket ban. In 1998, the Higher Regional Court of Frankfurt decided in regards to dissemination of Wolfenstein 3D via a bulletin board system by a “supporter of the nationalist scene” that the purpose of § 86a StGB imposes that in video games no symbols of unconstitutional organizations are to be used; main concerns were children getting too accustomed to Nazi symbols. The social adequacy clause was fully ignored. This is the only known sentencing of someone for distributing a commercial game with banned Nazi symbols. [Az .: 1 Ss 407/97]
6. The decision of the Higher Regional Court is not binding. It is not a decision by a highest court, it is not a landmark judgment. Germany does not use case law in the Anglo-American sense. Nevertheless, this ruling is used by the USK and the state youth authorities (OLJB) to deny all games with symbols a rating, apparently, even though they officially acknowledge their artistic merits themselves. On top of the legal uncertainty, they are simply worried about their reputation. The committees consisting of “youth protection experts” are a “pluralist” portrait of society; they are not criminal law experts by any means. A juridical examination is not offered by the USK or its partners; however, such an option is available for movies.
7. In total, only four games were seized or confiscated under § 86a StGB by local courts. Wolfenstein 3D [AG München, 25.1.1994, 2 Gs 167/94], Commandos: Behind Enemy Lines [AG Kassel, 24.6.1999, 132 Js 32822.9/98], Mortyr: 2093 – 1944 [AG München, 24.10.2001, 812 Gs 14/10] and Wolfenstein (2009) [AG Detmold, 19.1.2010, 3 Gs 99/10]. The only recent case, Wolfenstein (2009), was in conjunction with depictions of violence according to § 131 StGB; the court’s judgment simply enumerates the used types of Nazi symbols, and lacks legal explanations for the supposedly banned depictions of violence. It’s likely one of the most flawed media bans by local courts. As far as it is known, none of these decisions were opposed. In no other commercial games with Nazi symbols illegality was confirmed, also not in regards to the newer entries of the Wolfenstein series by Bethesda, which were also never indexed by the government agency BPJM as being harmful to minors. If the law would be violated, a distribution ban is imposed in Germany. On the subject of international criminal liability, a BGH decision from 2014 is of relevance, according to which no law is violated if the content is uploaded on a foreign server [3 StR 88/14].
8. The BPjM is not relevant. § 86a StGB is not one of the criteria for indexation [§ 18 JuSchG]. Commercial video games do not oppose the German constitution, they are not relevant for indexation by being means of propaganda (§ 86 StGB), and further, do not incite to hatred in accordance to § 130 StGB. Indexation because of symbol usage does not happen, as far at it is known; e.g. Wolfenstein 3D was indexed solely because of depictions of violence. If the USK rated German versions, e.g. Wolfenstein II: The New Colossus, feature the same violence as the international versions, the BPjM cannot index these unrated version for violence; they are bound in this sense. Protection of minors is also not a purpose of § 86a StGB, as the BGH in a judgment lists three other protective purposes [3 StR 486/06, 2007].
9. Comparable films or TV shows are approved by the FSK/OLJB. Examples are numerous: with adapted games like Indiana Jones or South Park; Tarantino’s Inglourious Basterds and the moon Nazi comedy Iron Sky; or based on novels like The Man in the High Castle by Amazon and HBO’s Fatherland, both with similar plot constellations to Wolfenstein II: The New Colossus. For the FSK and their permanent representatives of the OLJB (the state youth authorities) these and many other motion pictures are simply unsuspicious. The boundaries between film and game are ambiguous and blurred (e.g. interactive films, performance capture). Games stigmatized by the USK/OLJB are commercially successful, often critically well-received, and also reject National Socialism or the Third Reich (otherwise versions relieved purely of symbols, obviously depicting such content still, would not be able to find distribution in Germany). Movies never had to fight for it, it has always been accepted. One possible solution is to sue the USK (actually the state of North Rhine-Westphalia) for a rating. Note: the USK is a self-regulating Body, it’s not a government agency, however, the ratings are made official by the representatives of the OLJB.
10. Without the USK’s approval, retail distribution is impossible. Retailers and distributors often insist on the ratings which promise legal certainty. An unrated release is still possible, by principle, especially digitally. On Steam, its operator Valve apparently removes games with symbols from the German store if they notice them. USK.Online member GOG apparently knowingly sells some, and so does Origin with The Saboteur.