Germany puts social networks on a short leash – Who is affected?
Providers of social networks have been shocked today by the German parliament which passed the "Netzwerkdurchsetzungsgesetz" (Network Enforcement Act - NEA). The new law,
the alleged horrors of which have been described before here, here and here, intends to tackle the highly controversial issue of hate speech and other illegal content on social media platforms.
It will enter into force on October 1, 2017 and makes life harder for social networks in several respects, including the obligation to implement complaint management processes, to review and takedown content within rather short deadlines, and to report regularly on the processes implemented to comply with the law.
Please read below to find out whether you are affected, and what you need to do to avoid particularly robust fines.
Is every social network affected by NEA?
No, the new responsibilities only arise for platforms that have at least 2 million registered users in Germany. Further, offerings designated for individual communication (e.g. messaging services) or only meant to spread "specific content" are exempted.
It is unclear yet what exactly "specific content" actually means. The recitals refer to "professional networks" or "retail platforms" as an example without going into any further detail. Because the social network bears the risk when arguing it only offers "specific content" we currently recommend complying with NEA if the platform has more than 2 million registered users in Germany.
What new processes do I need to put into place?
NEA requires social networks to implement processes which allow the immediate registration and evaluation of complaints about "unlawful content" on their website. If the content is "evidently unlawful" it has to be deleted within 24 hours. If the unlawfulness is not obvious the deadline is extended to 7 days. In the latter case the social network may also authorize an approved independent institution to decide about a complaint.
During the whole complaint process the provider has to inform both the complainant and the affected user about each decision and measure. Further, each decision has to be justified in writing.
What is regarded as "unlawful content" under the NEA?
The NEA makes reference to a list of criminal offences contained in the German Criminal Code – only content that falls within their scope is considered "unlawful content" for the purpose of the NEA. Some of these offences, such as the prohibition to present swastikas, are easy to judge. Other, such as the dissemination of propaganda for unconstitutional organizations and the defamation of religious beliefs will require in-depth legal knowledge.
The NEA thus requires social network providers to provide comprehensive training in order to be able to assess whether the complaint concerns "unlawful content" which has to be repeated bi-annually.
What about the new bi-annual reporting obligation?
If a social network receives more than 100 complaints in a year, it is required to publish a report in the Federal Gazette and on its own website that details how the platform deals with the complaints, how many complaints it received or how many posts where deleted within the 24 hour timeframe. The requirements are quite formalistic. Incorrect information may result in significant administrative fines.
When do I need to implement these changes?
The new complaint process has to be implemented by January 1, 2018 at the latest. The first complaint report has to be published in July 2018.
What else will change?
Until now, social networks with a registered place of business in another EU country were entitled to accept service of official documents only if a translation was provided. The NEA now obliges every social network to appoint an authorized representative in Germany who is entitled to accept service of official documents related to the NEA.
Further, complainants will now have the right to apply before a German court for disclosure of the user's personal data in order to enforce civil law claims. Once the platform receives such a court order it has to disclose respective information within 48 hours. This also marks a striking change to the current legal framework.
What happens if I do not comply with the Network Enforcement Law?
The NEA allows for administrative bodies to impose significant fines of up to 50 million Euro per infringement. While first-time violations will likely be considerably below this maximum fine not having a process in place to follow all required steps of the complaint process or repeatedly publishing the complaint report incorrectly will quickly lead to much higher fines.
What shall I do now?
If you operate a social platform that has more than 2 million registered users in Germany you should begin transition to the new requirements as soon as possible.
The first steps are:
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Setting up a complaint procedure
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Training the employees handling the complaint management process
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Creating templates to communicate with complainants and users