On 1 October 2017, the German Netzwerkdurchsetzungsgesetz (Network Enforcement Act, „NetzDG“) that we already reported on in April and May, entered into force (English version here). The NetzDG shall be an “act to improve enforcement of the law in social networks” and aims at combating fake news and hate speech. Regulatory offences may be fined by up to EUR 5 million for individuals and up to EUR 50 million for the platform provider itself.
The NetzDG has been criticised since the beginning of the legislative process, as a great number of lawyers deem the law incompatible with the principle of freedom of expression and the upcoming EU E-Privacy Directive that will be effective 25 May 2018. Therefore, everyone is waiting in suspense for the first complaints brought up against this law to the German Federal Constitutional Court, or even the European Court of Justice.
We compiled the five key aspects of the NetzDG for social networks to make you NetzDG-ready.
1. To whom is the law applicable?
Pursuant to Sec. 1(1) and (2) NetzDG, the “Act shall apply to telemedia service providers which, for profit-making purposes, operate internet platforms which are designed to enable users to share any content with other users or to make such content available to the public (social networks)”, with more than 2 million registered users in Germany regardless of where the social network is established.
What are social networks within the meaning of the NetzDG?
The German legislator deliberately chose a broad definition of the term “social network” in Sec. 1(1) s. 1 NetzDG. However, there are exceptions provided in Sec. 1(1) s. 2 and 3 NetzDG, inter alia, for platforms offering journalistic or editorial contents, and those which are designed to enable individual communication because in the legislator’s opinion, “the term ‘platform’ refers to the use of communication spaces, where communications typically address a plurality of addressees”. Therefore, professional networks, specialist portals, online games, sales platforms, and very likely also dating websites, are exempted.
Applicability to foreign social network providers
The law is applicable to German and non-German social networks to which Germans may register. The justification to Sec. 4(3) NetzDG states that the obligations stipulated in the law and the corresponding administrative offenses are also applicable to acts from foreign companies. There is a general restriction that every complaint and the accordant remedy measure must be documented in Germany.
What are registered users?
Users within the scope of the Act are those who are “registered” in Germany (the reference point is the IP address that was used during registration). This presupposes that the relevant users have passed through a certain registration process, which means as a rule the allocation of a user name and consent to certain rules of the social network in the form of general business conditions. Excepted are the mere visitors of a website. The objective of the minimum number of users is to capture social networks with a great perpetuating effect, which is why non-registered visitors generally do not contribute. Users whose user relationship with the social network has been terminated are regarded as “no longer registered”. Inactive users also fall within the scope of the NetzDG, as they may potentially contribute to the communication within the network, and hence may potentially contribute to the perpetuating effect.
2. What is unlawful content?
The NetzDG deals with unlawful content whereat the Act differentiates between “manifestly” unlawful and merely unlawful content. The nature of the content regarding its unlawfulness determines the social network provider’s explicit obligation (see below under 3).
“Unlawful” content is content that is shared on social media with other users or in other ways made available to the public which unlawfully opposes the provisions of the Sections of the German Criminal Code that are listed in Sec. 1(3) NetzDG. The listed provisions deal with offences against the democratic constitutional state, the public order, the personal honour and the sexual self-determination.
Content is manifestly unlawful if “the illegality can be detected within 24 hours without an in-depth examination and with reasonable efforts, i.e. immediately by trained personnel”. In practice, it will be hard to determine whether content is “manifestly” unlawful, particularly with regard to the user’s intent. According to the legislator, in case of doubt, the content shall not be deemed manifestly unlawful. However, if this is the case, a more comprehensive assessment of the content’s illegality shall be conducted, and a seven-day-period applies (see below under 3).
3. Implementation of a complaint procedure
The NetzDG is infamous for its deletion obligation (see below). The deletion obligation, however, is just one step of the complaint management procedure that has to be implemented by the social network provider pursuant to Sec. 3 NetzDG. Moreover, the deletion of unlawful content is not explicitly listed in Sec. 4 NetzDG (Provisions on regulatory fines) and therefore, the upstream implementation of such a procedure might already lead to penalties if not executed properly.
The complaint management procedure should be implemented within three months after the Act has entered into force, hence until 1 January 2018.
The procedure shall be easily recognisable, directly accessible and permanently available to users for submitting complaints.
The procedure shall ensure that the social network provider takes immediate note of a complaint and checks whether the content in question is unlawful and subject to removal or blocking.
The content must be deleted or blocked within 24 hours if it is manifestly unlawful. Other unlawful content has to be deleted or blocked “immediately”, meaning within a seven-day time limit during which the content is “evaluated”. This obligation does not apply to complaints lodged through means other than the complaint-management procedure. Very likely, geo-blocking would not suffice.
Those deadlines do not, inter alia, apply if the platform provider has entered into a special agreement with law enforcement authorities, or if it has joined a state-approved self-control organization (for details, please consult Sec. 3(2) NetzDG and Reed Smith).
The social network provider shall immediately notify the user and the person submitting the complaint about any decision regarding the complaint, including the reasons for the decision.
In case the content is deleted, the social network provider shall retain and store the content for evidence purposes on servers within the EU for a period of 10 weeks.
Each complaint and the measure taken to redress the situation shall be documented.
The persons commissioned to process the complaints must regularly (at least every six months) obtain training and support offers in German language by the management of the social network, but they do not have to be located in Germany themselves.
4. The reporting obligation
Social network providers which receive more than 100 complaints on unlawful content per calendar year are obliged to produce half-yearly reports on the handling of complaints about unlawful content on their platforms in German language. These reports shall be published in the Federal Gazette and on the social network’s website. On the website, the report has to be easily identifiable, directly accessible and permanently available.
The reports shall cover the points stipulated in Sec. 2(2) NetzDG and inter alia comprise the criteria applied to decide whether to delete or to block unlawful content, and the time between the receipt of complaints and the deletion / blocking.
The first report is due for the first half-year of 2018 (31 July 2018 the latest).
5. Authorised person in Federal Republic of Germany
Pursuant to Sec. 5 NetzDG, platforms that are not established in Germany “shall immediately name a person authorised to receive service in the Federal Republic of Germany and shall draw attention to this fact on their platform in an easily recognisable and directly accessible manner”. This provision also applies to social networks with less than 2 million registered users, as the accordant exemption of Sec. 1(2) NetzDG only applies to Sec. 2 and 3 (Reporting obligation and implementation of complaints management procedure). The authorised person already had to be appointed by 1 October 2017.