On June 28, 2021, the Act to Amend the Network Enforcement Act entered into force in Germany. The Network Enforcement Act’s objective is to combat online hate speech and fake news in social networks. The amendment aims to increase the information content and comparability of social media providers’ transparency reports and improve the user-friendliness of the reporting channels for complaints about unlawful content. Furthermore, the amendment introduces an appeals procedure for measures taken by the social network provider. The powers of the Federal Office of Justice are expanded to include supervisory powers. Lastly, due to new requirements under the EU Audiovisual Media Services Directive, video-sharing platform services are included in the scope of the Network Enforcement Act.
Background on the Network Enforcement Act
In 2017, Germany passed the Network Enforcement Act (Netzwerkdurchsetzungsgesetz, NetzDG) (also called the “Facebook Act”). The law did not create any new duties for social media platforms but did impose high fines for noncompliance with existing legal obligations. The Network Enforcement Act is applicable only to social media networks that have 2 million or more registered users in Germany. It obligates the covered social media networks to remove content that is “clearly illegal” within 24 hours after receiving a user complaint. If the illegality of the content is not obvious on its face, the social network has seven days to investigate and delete it. A social media network may be fined up to 50 million euros (about US$59.2 million) for noncompliance. The Network Enforcement Act has been very controversial, and has been criticized as unconstitutional, in particular with regard to free speech, and as not user-friendly, in particular with regard to the complaint mechanism. Since the law entered into force, several political parties have submitted proposals to amend or repeal it.
Content of the Amendment
User-Friendliness of Complaint Procedures
Section 3, paragraph 1 of the Network Enforcement Act provides that the procedure for submitting complaints about unlawful content to social network providers must be “easily recognizable, directly accessible, and permanently available.” However, this requirement has not been uniformly implemented by providers, and some forms to submit complaints are hidden or available only after several clicks. (Explanatory memorandum at 17.) To improve the user-friendliness of the complaint procedure, the amendment also adds language requiring that the complaint procedure be “easy to use.” (NetzDG § 3, para. 1, sentence 2.)
Appeals Procedure and Arbitration
The amendment obligates social media providers to establish a mechanism whereby the complainant and the affected user may initiate a review of the decision to remove or not remove flagged content (appeals procedure). (§ 3b.) The appeal of the original decision must be submitted within two weeks. Furthermore, the amendment authorizes the Federal Office of Justice to approve arbitration bodies organized under private law for out-of-court settlements of disputes between complainants/users and social media providers. Participation in arbitration is voluntary. (§ 3c.)
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. (§ 2, para. 1.) The amendment requires that more information be included in the transparency reports. Among other things, providers must report if procedures for the automated detection of illegal content are used and, if yes, how they work. In particular, providers must report what training data for the system is used and what procedures for quality assurance or evaluation are in place. In addition, reports must further subdivide the numbers of complaints according to the amount of time it took to remove the flagged content (within 24 hours, within 48 hours, within a week, or at a later date). Information on the new appeals procedure must be added to the transparency report, meaning the number of appeals and the number of cases in which the original decision was revised. (§ 2, para. 2.)
Expansion of Powers of the Federal Office of Justice
Under the old version of the Network Enforcement Act, the Federal Office of Justice was able to issue fines only for noncompliance with the provisions of the Network Enforcement Act. The amendment gives the Federal Office of Justice powers to supervise compliance with the act. Once it has determined that an infringement has occurred, the office can require the social media provider to remedy the infringement. It can also request information about implementation measures, the number of registered users in Germany, and the number of complaints received in the past calendar year. Witnesses are obligated to testify in the administrative procedure. (§ 4a.)