Social Networks

Act improving law enforcement on social networks [Netzdurchführungsgesetz – NetzDG]

The draft proposes the introduction of statutory compliance rules for social networks in order to encourage them to process complaints about hate speech and other criminal content more quickly and comprehensively.

By laying down a legal definition of a social network, the draft ensures that the duty to report applies only to the operators of large, influential social networks, instead of to all service providers as set out in the Telemedia Act [Telemediengesetz – TMG]. The draft does not cover media platforms that publish their own journalistic and editorial content. The definition of a social network includes both the exchange of content between users in a closed or ‘gated’ community, and the public distribution of content. A minimum size is provided for relatively small companies (start-ups). It is also clarified that the illegal content concerned is only that covered by the objective offences in the criminal provisions used to combat hate speech or other criminal content, as set out in § 1(3) of the draft act.

Social networks shall be legally bound to file quarterly reports on how they dealt with complaints regarding potentially criminal content. The reports shall contain statistics on the volume of complaints and information on the networks' decision-making process. They shall also provide information on the complaints team responsible for processing the complaints. The reports must be readily retrievable both in the electronic Bundesanzeiger [Federal Gazette] and on the social network's homepage.

The draft sets out legal standards for effective complaint management to ensure that social networks delete blatantly criminal content corresponding to an objective offence in one of the criminal provisions stated in § 1(3), as a rule 24 hours after receipt of the complaint from the user. The draft makes it compulsory to have effective, transparent methods for the prompt deletion of illegal content, including user-friendly mechanisms for registering complaints. This compliance obligation is based on the provision regarding service providers' liability pursuant to § 10 TMG. Service providers are bound to immediately remove illegal content they are storing for a user, or to block access to said content once they become aware of it. The compliance obligations laid down in this draft presuppose said requirement imposed on service providers and specify it further.

Pursuant to the draft, the following constitute regulatory offences punishable with a fine of up to EUR 5 million: deliberate or negligent non-compliance with the reporting obligation, violation of the obligation to have effective complaint management, or violation of the obligation to appoint a person on German soil authorised to accept service and an authorised recipient on German soil for requests for information from law enforcement authorities. According to § 17(4) of the Act on Regulatory Offences [OWiG], the fine shall exceed the financial benefit obtained from the regulatory offence.

Under § 130 OWiG, which is also applicable, the owner of the company running the social network can also be prosecuted if proper supervision could have prevented or significantly reduced the likelihood of contravention of the obligation to have effective complaint management, the reporting obligation, or the obligation to appoint a person authorised to accept service and an authorised recipient on German soil.

Pursuant to § 30 OWiG, fines can also be imposed on legal persons and associations of persons. For such cases, the maximum fine according to this draft is increased to EUR 50 million (§ 30(2), sentence 3 OWiG).

The draft designates the Federal Office of Justice [Bundesamt für Justiz] as the competent administrative authority under § 36 OWiG. In connection with prosecutions for the regulatory offences stated in this draft, the Office shall also be responsible for checking whether the content is criminal within the meaning of § 1(3).