As of recently providers of social networks in Germany must comply with the so-called “Network Enforcement Act” formally known by the name “Act to Improve Enforcement of the Law in Social Networks” respectively “Netzwerkdurchsetzungsgesetz”. The new law is meant to fight unlawful content on the internet, including hate speech, by addressing social networks and increasing their responsibilities. It requires social networks with more than 2 million registered users in Germany to set up a procedure ensuring that “manifestly unlawful” content is removed within 24 hours of a complaint and all other unlawful content is generally removed within seven days of a complaint. Breaches of this duty are considered a “regulatory offense” and may be sanctioned with regulatory fines of up to €50 million ($60 million). Beyond this, the law extends the rights of individuals seeking information from service providers about subscriber data within their possession: service providers can be asked to share such information to enforce claims based on the violation rights by unlawful content.
Requirements in detail
The main provisions of the Network Enforcement Act only apply to social networks with no less than 2 million registered users in the Federal Republic of Germany. Platforms offering journalistic or editorial content as well as such enabling individual communication or the dissemination of specific content are exempt. This is to exclude merchandise platforms, gaming communities and professional networks such as Amazon World of Warcraft and LinkedIn respectively its German equivalent Xing. WhatsApp will most likely not be considered a social network either.
According to section 2 providers of social networks which receive more than 100 complaints per calendar year about unlawful content are obliged to produce a bi-annual report on the handling of such complaints. The report has to include quantitative and qualitative data on the organization of the complaint management system and the measures taken as a response to complaints.
Section 3 is the core of the new law: It requires social networks to set up procedures ensuring that the provider of the social network “removes or blocks access to content that is manifestly unlawful within 24 hours” and “all unlawful content immediately, this generally being within 7 days of receiving the complaint”. Unlawful content is defined in section 1(3) as content on social networks “which fulfils the requirements of the offences described in sections 86, 86a, 89a, 91, 100a, 111, 126, 129 to 129b, 130, 131, 140, 166, 184b in connection with 184d, 185 to 187, 241 or 269 of the Criminal Code and which is not justified.” The references to the criminal code mainly cover crimes against the state, the honor, and sexual self-determination. It is questionable whether social networks were capable to adequately and reliably make this determination within 24 hours respectively seven days of receiving a complaint – even taking into account the exceptions to these requirements and time periods foreseen in the text.
In section 5 the law defines regulatory offenses and fines for non-compliance. It is important to note that authorities may base fines not on the failure to remove or block individual postings, but only on the failure to establish and maintain effective procedures – or systemic shortcomings. While this might slightly reduce the danger of excessive blocking, it does not eliminate the economic incentive to establish a procedure with a tendency to result in blocking.
According to section 5 of the law providers of social networks must name a person within Germany in order to receive service and requests for information form authorities and courts. This is directed at social networks established outside of Germany claimed to be not sufficiently responsive to complaints users or requests from authorities.
An Amendment to the Telemedia Act, bundled with the Network Enforcement Act, will enable individuals injured by unlawful content to request information about the user in question from service providers. This extends the existing possibilities to request user data beyond cases of terrorism or infringements of intellectual property and empowers injured parties instead of only law enforcement and intelligence agencies in.
Guggenberger, Das Netzwerkdurchsetzungsgesetz in der Anwendung, NJW 2017, 2577