Providers of social networks and video-sharing platforms
Draft Act amending the Network Enforcement Act
The Network Enforcement Act (NetzDG) obliges large social networks to operate a complaints management system, which they must use to receive and review user complaints and to remove or block illegal, i.e. criminal, content.
The draft act adapts the NetzDG to the new requirements of Directive (EU) 2018/1808, which amended Directive 2010/13/EU on audiovisual media services (AVMSD). The AVMSD contains new requirements for compliance provisions to protect against unacceptable content on video-sharing platform services. The NetzDG already covers some of these services. However, unlike the NetzDG in force, the AVMSD also requires the introduction of compliance requirements for small and subject-driven providers.
The division of competences between the Member States, as regulated by the AVMSD, is observed. In the case of video-sharing platform services that are established in or are deemed to be established in another Member State, it is considered that the minimum harmonised degree of protection according to Article 28b AVMSD for certain content is guaranteed by the other Member State. In this context, the primary competence of the country of domicile is observed in accordance with Article 28a(1) AVMSD. Competence may arise for the German authorities in the market in accordance with Article 28a(5) AVMSD in conjunction with Article 3(4) of Directive 2000/31/EC (e-Commerce Directive) only in cases of particular necessity and only after a consultation procedure with the country of domicile.
The AVMSD is transposed in §§ 3d to 3f NetzDG. § 3d NetzDG contains the necessary definitions and rules for determining the relevant Member State pursuant to Article 28a(1) AVMSD in which a provider is established or is deemed to be established. § 3e(1) NetzDG stipulates that the requirements of the NetzDG apply to video-sharing platform services covered by this, but taking into account the special rules in § 3e(2) to (4) NetzDG regarding smaller and foreign providers in particular. These special rules apply to user-generated videos and programmes covered by the AVMSD, while text content, for example, remains unaffected and, as such, there is no restriction of the previous applicability of the NetzDG. § 3f NetzDG establishes an official arbitration body for disputes with video-sharing platform services.
The draft act provides for further changes that, in particular, will improve the legal position of users in relation to social networks in the event of a dispute about action taken by the network, such as the deletion of content, and will ensure greater transparency.
In view of the experience gained from previous transparency reports, the information content and comparability of the transparency reports pursuant to § 2 NetzDG are to be increased. For example, changes in the transparency reports compared to previous reporting periods and possible reasons for this are to be reported in future. To make it easier for the public to compare reports from different providers, the reports should in future contain a summary of essential information. In future, it will also be necessary to report on the handling of appeals (e.g. the number of put-backs) and the basic functioning of automated processes when finding content to be removed, if the provider uses such processes. In addition, providers will in future report on whether and to what extent science and research are granted access to potential insights for anonymised evaluation, concerning specific effects of illegal content, coordinated behaviours in its dissemination, and the linking of illegal content to particular personal characteristics.
The second sentence of § 3(1) NetzDG is amended to clarify that the reporting channels via which complaints about illegal content can be transmitted must be easy to use and must be easily recognisable and immediately accessible from the content. This again clarifies that a hard-to-find, long or complicated click path from the content to be reported to the option to submit a complaint is not consistent with the law.
The newly created § 3b NetzDG introduces an appeals procedure. This ensures that both complainants and content writers can easily have a content decision reviewed by a social network reviewer.
§ 3c NetzDG introduces the possibility of recognition for an arbitration body organised under private law. Such arbitration can help in finding an out-of-court solution to disputes between complainants/users and the provider.
§ 4a NetzDG introduces supervisory powers and authorities for the Federal Office of Justice.
§ 5(1) NetzDG clarifies that complaints may be delivered to the address for service via which the unfounded acceptance of the existence of illegal content is asserted. In particular, this covers reinstatement complaints seeking the restoration of content removed by the network with an explanation of the reasons or asserting the inadmissibility of the blocking of an account on this basis.
According § 5(2) NetzDG, the names of the persons entitled to receive information as domestic contact persons for the law enforcement authorities must in future be provided directly to the Federal Office of Justice, which may in turn share this information with the law enforcement authorities.
§ 14(3) and (4) of the Telemedia Act (TMG) is supplemented such that, in future, the court dealing with the decision on the admissibility of data disclosure may at the same time impose the obligation to disclose data.