1. In general

Since October 1st 2017 the Act to Improve Enforcement of the Law in Social Networks (NetzDG) regulates the fight against “fake news” and “hate crime” in social networks. The importance of this objective, as well as the public criticism of it, is reason enough to provide an objective insight into the law.

Who does it apply to?

As stipulated in S1 (1) sentence 1 NetzDG, the law applies to so-called social networks. These are defined as 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. According to S1 (1) sentence 2 and 3 NetzDG, platforms offering journalistic or editorial content, the responsibility for which lies with the service provider itself and platforms which are designed to enable individual communication shall not constitute social networks within the meaning of this Act. In particular, this provision is intended to exclude professional networks, specialist portals, online games, sales platforms and messenger services from the scope of the law.

Furthermore, there are certain simplifications for “smaller” social networks with less than two million registered users, e.g. they are exempted from the reporting requirements stipulated in S2 NetzDG and the regulations of S3 NetzDG.

  1. What does it concern?

The NetzDG shall ensure that certain unlawful contents are removed or blocked after a complaint was lodged. S1 (3) NetzDG defines unlawful content as content that fulfils the requirements of the offences described in SS86, 86a, 89a, 91, 100a, 111, 126, 129 to 129b, 130, 131, 140, 166, 184b in connection with 184d, 185 to 187, 201a, 241 or 269 of the Criminal Code and which is not justified. In essence, these are contents that violate norms which affect the protection of the democratic constitutional state, public order, personal honour and sexual self-determination. According to the legal justification (BT-Drs. 18/13013,21; BT-Drs. 18/12356), it should be noted that in the context of the violation of one of the above mentioned regulations of the Criminal Code, it is irrelevant if the person acts guilty or not.

  1. What needs to be done?

According to S3 (2) No. 1 NetzDG, a procedure that ensures that the provider of the social network, i. e. the authorised knowledge representative within the support team, takes immediate note of the complaint and checks whether the content reported in the complaint is unlawful and subject to removal or whether access to the content must be blocked shall be maintained.

As stipulated in S3 (2) No. 2 NetzDG, manifestly unlawful contents shall be removed within 24 hours of receiving the complaint, whereby a longer period of time for blocking or deletion can be agreed individually with the competent law enforcement authority. A manifestly unlawful content is given if the unlawfulness can be detected without any in-depth examination, i. e. it can be examined immediately by trained personnel, but with reasonable effort and in any case within 24 hours.

According to S3 (2) No. 3 NetzDG, the access to other unlawful contents shall be removed or blocked without delay and generally within seven days. This time limit may be exceeded if the decision regarding the unlawfulness of the content is dependent on the falsity of a factual allegation or is clearly dependent on other factual circumstances. In such cases, the social network can give the user an opportunity to respond to the complaint before the decision is rendered, S3 (3) No. 3 lit. a) NetzDG. In addition, S3 (3) No. 3 lit. b) NetzDG allows the social network to refer the decision regarding unlawfulness to a recognised self-regulation institution within seven days of receiving the complaint and agrees to accept the decision of that institution.

In the case of removal, the content shall be retained as evidence and stored for this purpose within the scope of Directives 2000/31/EC and 2010/13/EU for a period of ten weeks, S3 (2) No. 4 NetzDG.

Furthermore, the person submitting the complaint and the user shall be notified immediately about any decision, while also be provided with reasons for the decision, S3 (2) No. 5 NetzDG

In addition, the management of the social network shall monitor the established procedure via monthly checks and offer training courses and support programmes delivered in the German language on a regular basis to the persons tasked with the processing of complaints, S3 (4) NetzDG.

In addition, providers of social networks which receive more than 100 complaints per calendar year about unlawful content shall be obliged to produce half-yearly German-language reports on the handling of complaints about unlawful content on their platforms and shall be obliged to publish these reports in the Federal Gazette and on their own website no later than one month after the half-year concerned has ended, S2 (1) NetzDG. S 2 (2) NetzDG regulates the minimum aspects the report shall cover.

Finally, in accordance with S5 NetzDG, the provider of social networks shall appoint both a person authorised to receive service in the Federal Republic of Germany as well as a person in the Federal Republic of Germany authorised to receive information requests from German law enforcement authorities.

  1. Who has to pay and when?

According to S4 (2) NetzDG, regulatory offence may be sanctioned with fines of up to 5 million euros. In accordance with S4 (1) NetzDG, the regulatory offence may be imposed for the failing to produce the report stipulated in S2 (1) NetzDG, or the incorrect, incomplete or untimely preparation or publication of this report or for breaches of the procedural obligations stipulated in S3 (1) and (4) NetzDG. Fines of up to EUR 500,000,- may be imposed if the provider fails to name a person authorised to receive service in the Federal Republic of Germany or fails to name a person in the Federal Republic of Germany authorised to receive information requests from German law enforcement authorities as stipulated in S5 NetzDG or fails to respond to requests for information while acting as the person authorised to receive service, S4 (2) NetzDG.