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Article Germany: Social Media Platforms to Be Held Accountable for Hosted Content Under "Facebook Act"

(July 11, 2017) On June 30, 2017, the German Bundestag (parliament) adopted the Act to Improve the Enforcement of Rights on Social Networks (Network Enforcement Act, the so-called Facebook Act), which aims to combat hate speech and fake news in social networks. (Gesetzesbeschluss des Deutschen Bundestages. Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken [Netzwerksdurchsetzungsgesetz] [NetzDG] (Network Enforcement Act or NetzDG), DEUTSCHER BUNDESRAT: DRUCKSACHEN [BR-Drs.] 536/17 (June 30, 2017), Deutscher Bundesrat website.)

The Bundesrat, the constitutional body through which the German states participate in the legislative process, approved the Network Enforcement Act in its session on July 7, 2017. (Beschluss des Bundesrates. Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz – NetzDG) Act [Decision of the Bundesrat. Act to Improve the Enforcement of Rights in Social Networks (Network Enforcement – NetzDG) Act], BR-Drs. 536/17 (Beschluss) (July 7, 2017), Deutscher Bundesrat website.) The Act will enter into force on October 1, 2017. (Network Enforcement Act, art. 3.)

Scope of Application

The Network Enforcement Act is only applicable to social media networks that have two or more million registered users, for example, Facebook, Twitter, and Youtube. (Id. art. 1 § 1 ¶ 2.)  Social media networks are defined as tele-media service providers that operate online platforms with the intent to make a profit and on which users can share content with other users or make that content publicly available.  (Id. art. 1 § 1 ¶ 1.)  The Act does not apply to email or messaging services.  (Id. art. 1 § 1 ¶ 1 sentence 3.)  Every social media network is required to designate a domestic agent for service of process and that will answers requests from law enforcement authorities.  (Id. art. 1 § 5.)

Removal of Illegal Hosted Content

The Act obligates these social media networks to remove content that is “clearly illegal” within 24 hours after receiving a user complaint. (Id. art. 1 § 3 ¶ 2 no. 2.)  If the illegality of the content is not obvious on its face, the social network has seven days to investigate and delete it.  (Id. art. 1 § 3 ¶ 2 no. 3.)  The seven-day deadline may be extended if the social network hires an outside agency to perform the vetting process, a recognized “Agency of Regulated Self-Regulation.”  (Id. art. 1 § 3 ¶ 2 no. 3b, § 3, ¶ 6.)  An agency may be recognized by the Ministry of Justice as an “Agency of Regulated Self-Regulation” if the examiners are independent and possess the necessary expertise, a speedy examination within seven days is guaranteed, rules of procedure exist on how to deal with a complaint, a complaints office exists, and the agency is supported by several social media networks that guarantee that there will be sufficient equipment to work efficiently and expeditiously.  (Id. art. 1 § 3 ¶ 6.)

In regard to determination of illegality of the content, the Act refers to the Criminal Code provisions on dissemination of propaganda material or use of symbols of unconstitutional organizations; encouragement of the commission of a serious violent offense endangering the state; commission of treasonous forgery; public incitement to crime; and incitement to hatred, among others. (Id. art. 1 § 1 ¶ 3; Strafgesetzbuch [StGB] [Criminal Code], Nov. 13, 1998, as amended, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 3322, §§ 86, 86a, 89a, 91, 100a, 111, 126, 129-129b, 130, 131, 140, 166, 184b in conjunction with 184d, 185-187, 201a, 241, 269, GERMAN LAWS ONLINE; German Criminal Code (as last amended Oct. 10, 2013), GERMAN LAWS ONLINE (unofficial English translation).)

Complaint Mechanism and Biannual Reports

The social media platforms are obligated to offer their users an easy and transparent complaint mechanism that is constantly available. (Network Enforcement Act, art. 1 § 3 ¶ 1.)  The decisions taken with regard to the complaint and the reasoning behind accepting or rejecting it must be communicated to the complainant and the affected user without undue delay.  (Id. art. 1 § 3 ¶ 2, no. 5.)

Social media networks that receive more than 100 complaints about illegal content in a calendar year are required to publish biannual reports in German on how they deal with these complaints. The report has to be published in the Federal Gazette and on the homepage of the social media network one month after the end of each half-year period.  (Id. art. 1 § 2 ¶ 1.)  The first time the report is due is for the first half year of 2018. (Id. art. 1, § 6, ¶ 1). The report must be easily identifiable, immediately accessible, and permanently available.  (Id. art. 1 § 2 ¶ 1). It must include information on the general efforts to prevent illegal actions on the platform, a description of the complaint procedure, the number of the received complaints, the number and qualifications of employees who are handling the complaints, the network’s association memberships, the number of times an external party has been used to decide the illegality of the content, the number of complaints that led to the content being deleted, the time it took to delete the content, and measures that were taken to inform the complainant and the member who posted the deleted content.  (Id. art. 1 § 2 ¶ 2.)


A social media network that intentionally or negligently violates the above-mentioned obligations may be fined. If the network does not designate a domestic agent or if the designated agent does not react to an information request, a fine of up to €5 million (about US$5.7 million) may be levied.  For all other violations, the social network may be fined up to €50million.  If the Ministry of Justice wants to fine a company because the Ministry considers the content that was not deleted to be illegal, it must first obtain a court decision to this effect.  (Id. art. 1 § 4 ¶ 5; Gesetz über Ordnungswidrigkeiten [OWiG] [Act on Regulatory Offenses], Feb. 19, 1987, BGBl. I at 602, as amended, § 30 ¶ 2, sentence 3, GERMAN LAWS ONLINE; Act on Regulatory Offences (as last amended on May 13, 2015), GERMAN LAWS ONLINE (unofficial English translation).)


 The German Minister of Justice, Heiko Maas, remarked that freedom of expression is a fundamental right, but that it ends “where criminal law starts.”  He added that the new law protects the freedom of expression of all by “ending the verbal law of the jungle.”  (Deutscher Bundestag, Bundestag beschließt Gesetz gegen strafbare Inhalte im Internet [Bundestag Adopts Act to Combat Illegal Content on the Internet] (June 30, 2017), Deutscher Bundestag website (in German).)

Dr. Petra Sitte, a member of the Left Party, criticized what she deemed to be passage of the law in undue haste, because it was adopted after only a few months of consideration and on the last day of the Bundestag session.  In her opinion, the time that a network has to determine whether to delete the content is too short, because it has to make a complicated legal determination whether the content is illegal.  She added that most social media networks would therefore err on the side of deleting the content.  In addition, she stated that legal determinations on the illegality of content should be left to the courts instead of private parties.  (Id.)

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