The German Federal Parliament has adopted a bill which aims to enhance the enforcement of social media platform providers' legal obligation to delete certain online content which violates German criminal law.
The Network Enforcement Act (“NEA”) (in German: Netzwerkdurchsetzungsgesetz) obligates social media platform providers that have at least 2 million registered users in Germany to establish internal compliance systems (see below, at 2) and to ensure the deletion or blocking of "unlawful" content within statutorily established deadlines (see below, at 3). Violations of the obligations under the NEA are subject to hefty fines (see below, at 4). It is expected that the NEA will be challenged before the German Federal Constitutional Court for violation of the constitutional guaranty of freedom of speech (see below, at 5.). The German Act is part of a development, both at national and at EU levels, to counter the publication of unlawful content on social media platforms (see below, at 6). Social media companies operating on the German market will need to comply with their obligations under the NEA regarding the implementation of the complaint procedure by January 1, 2018 (see below, at 7.).
On 7 July 2017, the Act passed the German Federal Council; the NEA will enter into force on 1 October 2017.
1. Scope of applicability: "Hate Speech"
Several attempts by the Federal Ministry of Justice to persuade social media platform providers to address the perceived growth of "hate crimes" and the publication of other illegal content on social media platforms have led to certain improvements of platform providers' internal complaint management procedures. The Ministry, however, considered the voluntary commitments to be insufficient. Therefore, the NEA is designed to "incentivize social networks to process complaints regarding hate crimes and other punishable contents more quickly and more comprehensively".
The requirements under the NEA to establish internal compliance systems and to ensure the deletion or blocking of "unlawful" content apply to all social media platforms that have at least 2 million registered users in Germany; they apply neither to platforms with journalistic, editorially arranged content (i.e. platforms without user-generated third party content) nor to platforms intended for individual communication or the dissemination of specific content (e.g. e-mail and messenger services). According to the legislative materials, no more than ten platform providers will currently be subject to the NEA.
IT & Communications
IT & Communications
All providers of social media platforms must appoint a representative residing in
Application of the NEA is triggered if "unlawful content" is published on a social
media platform and the provider has received a specific complaint regarding such
"unlawful content". The term "unlawful content" is statutorily defined as content
which violates expressly listed criminal offences under the German Penal Code
(Strafgesetzbuch, “StGB”). These criminal offences include:
Dissemination of propaganda material of unconstitutional organizations
(Section 86 StGB),
Encouraging the commission of a serious violent offence endangering the
state (Section 91 StGB),
Public incitement to crime (Section 111 StGB),
Incitement to hatred (Section 130 StGB),
Rewarding and approving of criminal offences (Section 140 StGB),
Libel, defamation and threatening the commission of a felony.
2. Mandatory compliance systems
The NEA obligates platform providers that have at least 2 million registered users
in Germany to establish effective and transparent procedures to deal with
complaints regarding unlawful content. To this end, the platform provider has to
establish an easily recognizable, directly accessible, and permanently available
process for the submission of complaints regarding unlawful content. This
procedure shall ensure that the provider will, without undue delay, take notice of
the complaint and examines whether the content, which is the subject of the
complaint, is unlawful and must be blocked or removed. The procedure
implemented by the provider must further foresee that every complaint and every
measure taken to remedy such complaint is documented (geographic restrictions
The platform provider’s management must control the handling of illegal content on
a monthly basis. Personnel of the work units responsible for dealing with
complaints must be offered training opportunities in German language at least
every six months.
In addition to the procedural and organizational rules regarding their internal
compliance systems, platform providers that have at least 2 million registered
users in Germany are subject to detailed reporting requirements.
Providers of social networks which receive more than 100 complaints per year
regarding unlawful content must outline their handling of illegal content in bi-annual
reports in German language. These reports must be published in the Federal
Gazette (Bundesanzeiger) as well as on the provider's website no later than one
month after each half-year period. The publication on the website must be easily
identifiable, directly accessible and permanently available. The bi-annual reports
shall include, as a minimum, the following information:
General description of the provider’s efforts to prevent criminal offences on
A description of the complaint management procedures and the criteria for
deleting or blocking content
The number of complaints received during the reporting period separating
out those complaints that led to deletion or blocking of content, in each
case broken down in various categories
A description of the organization, personnel resources, professional and
linguistic qualifications of the departments responsible for dealing with
complaints as well as their training and supervision
The number of complaints received that were forwarded to a third party
expert (e.g. a lawyer) to prepare a decision
The time between receipt of complaint and deletion or blocking of illegal
content, broken down by category of complaint and processing time (within
24 hours/within 48 hours/within a week/at a later point in time).
All providers of social media platforms must appoint a person residing in Germany
who is authorized to accept service from public authorities and from the courts and
to identify such person clearly on the platform, allowing for direct contact.
Furthermore, the platform provider is required to appoint a person residing in
Germany empowered to receive information requests from German law
enforcement authorities. This person is obligated to respond to information
requests within 48 hours and, if a satisfactory response cannot be given, to provide
3. Obligations to remove "unlawful content"
The complaint procedure to be established by social media platform providers that
have at least 2 million registered users in Germany must ensure that content which
is "manifestly" unlawful shall be blocked or removed within 24 hours following
receipt of the complaint. The law does not define what constitutes "manifestly"
unlawful content; the legislative materials state that content is "manifestly" unlawful
if "no in-depth review is required" to determine the unlawfulness.
Unlawful content which is not "manifestly" unlawful must be blocked or removed
"without delay, generally within 7 days after receipt of the complaint". This 7 daydeadline
may be exceeded if the determination of the unlawfulness of the content
requires the validation of a factual statement or of other circumstances. In these
cases, the platform provider may give the user, who has posted the allegedly
unlawful content, an opportunity to comment on the complaint. The 7 day-deadline
may also be exceeded if the platform provider requests an accredited "Institution of
Regulated Self-Regulation" to handle the assessment of the relevant content and
agrees to accept this institution's decision. If content is removed, it must be
retained for evidence purposes for a duration of ten weeks (geographic restrictions
The concept of "Regulated Self-Regulation" had been introduced into the NEA by
the Federal Parliament in an attempt to allow for an objective third party to assess
the "unlawfulness" of content. The NEA sets out the criteria which an "Institution of
Regulated Self-Regulation" must meet in order to be approved by the Federal
Office of Justice. Specifically, the members of the institution need to be
independent and qualified; the institution needs to have the necessary resources to
ensure the processing of complaints within 7 days; it needs to have a procedural
code and must be jointly operated by several providers of social networks or
institutions which provide the required resources. The model for the "Institution of
Regulated Self-Regulation" are the existing organizations of voluntary self4
regulation which have been established under an Interstate Treaty for the
Protection of Minors in the Media. This Interstate Treaty requires, in addition to the
"independence and competence" of the appointed examining staff, that
"representatives of the relevant groups of society" are included among the staff.
4. Enforcement through fines
Violations of the obligations under the NEA are administrative offences subject to
Failure, by a platform provider, to appoint a representative in Germany and failure
to respond to a request for information by a law enforcement authority may result in
fines up to EUR 500,000.
Violations of the reporting obligations and the obligations to establish and monitor
the compliance and complaint management system are subject to fines up to 5
million EUR. These fines may, in particular, be imposed if the complaint
management procedure does not ensure the proper handling of complaints. This
means that failure to block or delete unlawful content may be punished by severe
fines. The legislative materials make it clear, however, that a fine for failure to block
or delete unlawful content can only be imposed "if it is not an individual case". In
other words, fines will be triggered if failures to delete indicate that the complaint
management system is characterized by "systemic shortcomings".
The NEA foresees that administrative offences can be sanctioned also where they
are committed outside of Germany.
The NEA provides for a novel procedure of preliminary ruling by the local court
(Amtsgericht) at the seat of the Federal Office of Justice (city of Bonn). If the Office
of Justice intends to impose a fine for not removing or blocking unlawful content, it
should apply to the local court for a preliminary ruling regarding the unlawfulness of
such content. According to the wording of the NEA, as amended by Parliament, the
Office of Justice is not obliged to seek a preliminary ruling, but has limited
discretion to do so. The application for a preliminary ruling shall be submitted
together with the opinion of the platform provider. The court's decision can be
rendered without oral proceeding. It cannot be appealed and is legally binding for
the Office of Justice.
Social media providers that have been fined have the right to appeal such fines
before the courts.
5. Constitutional challenge
The NEA has attracted strong criticism from the legal community, civil rights
activists, and digital rights groups. Despite the Parliament's attempts to "soften" the
NEA by allowing for the review of complaints by an "Institution of Regulated Self-
Regulation" (see above, at 3) it is conceivable that the threat of heavy fines may
lead to "over-blocking" of content by platform providers, which might be considered
a violation of the constitutionally guaranteed freedom of speech.
Critics have already announced that they will challenge the NEA before the
German Federal Constitutional Court. There are several procedural avenues which
social media platform providers, their users, and persons affected by "hate speech"
could take to subject the NEA to constitutional scrutiny.
6. Global Outlook
A number of countries, particularly in the European Union, are currently
considering or have recently adopted legislation to counter "hate speech". The
Italian Cyberbullying Act, which entered into force on June 18, 2017, provides that
any individual between 14 and 17 years of age (as well his/her parent or tutor) who
has suffered cyberbullying acts may request the data controller or the "manager of
the website or social media" to obscure, remove, or block any personal data of the
minor, even if such acts do not constitute a crime. The Italian Cyberbullying Act
does not expressly provide for specific sanctions in case of non-compliance with
the blocking request by data controllers or managers of the website or social
media. However, the minor (or parent/tutor) may send an identical request to the
Italian Data Protection Authority which must take action within 48 hours from
receipt of such request, if (i) the manager of the website has not confirmed that it
has arranged for obscuring, removing or blocking the data within 24 hours after the
initial minor’s request, or (ii) the manager of the website has not done so within 48
hours, or (iii) it is not possible to identify the data controller or the manager of the
While a number of countries give authorities direct or indirect powers to order the
blocking of hate speech or other unlawful content, the German NEA takes a novel
approach in that it shifts the obligation to assess and determine the unlawfulness of
content onto the social media provider itself. In this respect, Germany deviates
from the approach at EU level which is based on voluntary self-regulation on the
basis of the "Code of Conduct on countering illegal online hate speech" established
in 2016. According to a press release recently published by the EU Commission,
the results of the first evaluation of the viability of this approach show that "the
companies have made significant progress in following up on their commitments"
but "some challenges remain".
7. Next Steps for Social Media Companies
Since the NEA provides only for a very short transition period, social media
platform providers which are subject to the NEA's obligations need to establish new
or enhance existing internal compliance structures and establish the required
complaint procedures by January 1, 2018. They will have to publish their first report
on their handling of illegal content and related complaints by mid-2018. The NEA
does not provide for a transition period regarding the appointment of the
For further information, please contact:
Baker & McKenzie - Partnerschaft von Rechtsanwälten, Wirtschaftsprüfern und Steuerberatern mbB
Friedrichstrasse 88/Unter den Linden
Tel.: +49 30 2 20 02 81 0
Fax: +49 30 2 20 02 81 199
Frankfurt am Main
60311 Frankfurt / Main
Tel.: +49 69 2 99 08 0
Fax: +49 69 2 99 08 108
Neuer Zollhof 2
Tel.: +49 211 3 11 16 0
Fax: +49 211 3 11 16 199
Tel.: +49 89 5 52 38 0
Fax: +49 89 5 52 38 199
This client newsletter is prepared for information purposes only. The information contained therein should not be relied
on as legal advice and should, therefore, not be regarded as a substitute for detailed legal advice in the individual
case. The advice of a qualified lawyer should always be sought in such cases. In the publishing of this Newsletter, we
do not accept any liability in individual cases.
Baker & McKenzie - Partnerschaft von Rechtsanwälten, Wirtschaftsprüfern und Steuerberatern mbB is a professional
partnership under German law with its registered office in Frankfurt/Main, registered with the Local Court of
Frankfurt/Main at PR No. 1602. It is associated with Baker & McKenzie International, a Verein organized under the
laws of Switzerland. Members of Baker & McKenzie International are Baker McKenzie law firms around the world. In
common with terminology used in professional service organizations, reference to a "partner" means a professional
who is a partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office of any such law
© Baker McKenzie