Unprecedented move by German prosecutors over Nazi imagery in satirical game

Potentially setting a legal precedent, German prosecutors have opted not to pursue legal action against makers of a video game which a depicted a mirrored swastika.

Bundesfighter II Turbo was published last year by public broadcasting organisation Funk Media in an effort to encourage young and disenfranchised voters to participate in the German federal elections.

The satirical web browser fighting game -- featuring prominent German politicians as playable characters -- was reported to authorities by a member of the Association for Germany's Video and Computer Players (VDVC).

In the game, Alexander Gauland -- leader of the far-right Alternative for Germany (AfD) -- has a special move that involves contorting his body into the shape of a mirrored swastika.

Under German law, the depiction of Nazi imagery in media is strictly regulated, and is only permissible under "social adequacy" clauses such as for education or satire.

However, following a ruling in 1998 over Wolfenstein 3D, a German high court ruled that Nazi imagery was prohibited in video games and no consideration was given to the “social adequacy” clause.

Due to the Wolfenstein 3D decision, no game which depicts Nazi imagery is able to obtain an age-rating from the German rating board (USK), including satirical games.

In the case of Bundesfighter II, the Public Prosecutor's Office (PPO) confirmed there are no legal proceedings underway, despite noting the clearly recognisable mirrored swastika in the game, contravening the high court ruling.

According to the PPO, the game serves "both the arts and civic enlightenment" -- stating it is irrelevant whether digital games are art or not -- and is therefore exempt from censorship.

It is the first known decision from the PPO not to investigate a potential breach of censorship law in a video game.

The Attorney General's Office upheld the decision, suggesting that current legislation was “outdated”. The attorney general also noted that more adequate age-rating schemes had been implemented since 1998, and that video game have been recognised as art on principle since 2008.

A recent example where censorship was enforced is Wolfenstein II whereby developer Machine Games had to remove all Nazi imagery for its German release, despite the game's artistic merits.

While this decision by the PPO could set a legal precedent for games like Wolfenstein in the future, it's not guaranteed.

According to Sebastian Schwiddessen, an associate at legal firm Baker McKenzie, the attorney general's decision would not necessarily bind the USK, which could still cite the original 1998 high court ruling as reason to deny age-rating.