The German legislator has, in principle, adopted the Network Enforcement Act (NEA) (in German: "Netzwerkdurchsetzungsgesetz") which will impose stringent new obligations on social media platform providers in relation to unlawful content. This an attempt to more effectively combat fake news and hate speech. Click here for our detailed client alert.

Who will the NEA apply to?

The NEA will apply to, and impose obligations on, providers of social media platforms that have at least two million registered users in Germany. It will not apply to platforms with journalistic, editorially arranged content (ie, platforms without user-generated third party content) nor to platforms intended for individual communication or the dissemination of specific content (eg, e-mail and messenger services). According to the legislative materials, no more than 10 platform providers will currently be subject to the NEA.

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 Criminal Code, including, for example, public incitement to crime and the dissemination of propaganda material of unconstitutional organizations.

What are the new obligations?

The in-scope social media platform providers will be subject to the following key obligations:

  • establish effective and transparent complaint processes and procedures
  • delete or block unlawful content within statutorily established deadlines ("manifestly" unlawful content must be blocked or deleted within 24 hours following receipt of a complaint, other unlawful content must be blocked within 7 days subject to limited exceptions)
  • C-level management must control the handling of illegal content on a monthly basis and personnel handling illegal content must be offered training at least every 6 months
  • publicly report on their handling of illegal content in half-yearly reports in German language (only applies to providers that receive more than 100 unlawful content complaints per year)
  • appoint a person residing in Germany authorized to receive official service and information requests.

Failure to comply with the obligations under the NEA may result in hefty fines of up to €5 million.

When will these obligations start to apply?

Once signed into law, the NEA will enter into force on 1 October 2017. It only provides for very brief transition periods. The obligation to establish new or enhance existing internal compliance structures and establish the required complaint procedures will be enforceable as of 1 January 2018. The first reports outlining the handling of illegal content and related complaints are due by mid-2018. The NEA does not provide for a transition period regarding the appointment of the representative.

What now?

It is to be expected that constitutional complaints will be filed against the NEA. Compared to the rules established at EU level and in other EU Member States, the new German rules are burdensome in that they shift the obligation to assess and determine the unlawfulness of content onto platform providers. Nonetheless, large social media platform providers would be well advised to study their obligations under the NEA sooner rather than later and start putting in place processes and procedures ensuring compliance.