Notification Detail

Draft Act amending the Network Enforcement Act

Notification Number: 2020/174/D (Germany)
Date received: 30/03/2020
End of Standstill: 01/07/2020

Issue of comments by: Commission
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Message 002

Communication from the Commission - TRIS/(2020) 01101
Directive (EU) 2015/1535
Translation of the message 001
Notification: 2020/0174/D

No abre el plazo - Nezahajuje odklady - Fristerne indledes ikke - Kein Fristbeginn - Viivituste perioodi ei avata - Καμμία έναρξη προθεσμίας - Does not open the delays - N'ouvre pas de délais - Non fa decorrere la mora - Neietekmē atlikšanu - Atidėjimai nepradedami - Nem nyitja meg a késéseket - Ma’ jiftaħx il-perijodi ta’ dawmien - Geen termijnbegin - Nie otwiera opóźnień - Não inicia o prazo - Neotvorí oneskorenia - Ne uvaja zamud - Määräaika ei ala tästä - Inleder ingen frist - Не се предвижда период на прекъсване - Nu deschide perioadele de stagnare - Nu deschide perioadele de stagnare.

(MSG: 202001101.EN)

1. Structured Information Line
MSG 002 IND 2020 0174 D EN 30-03-2020 D NOTIF


2. Member State
D


3. Department Responsible
Bundesministerium für Wirtschaft und Energie, Referat E C 2, 11019 Berlin,
Tel.: 0049-30-2014-6353, Fax: 0049-30-2014-5379, E-Mail: infonorm@bmwi.bund.de


3. Originating Department
Bundesministerium der Justiz und für Verbraucherschutz, Referat V B 2, 10117 Berlin
Tel.: 0049-30-18580-9522, Fax: 0049-30-18580-9525, E-Mail: poststelle@bmjv.bund.de


4. Notification Number
2020/0174/D - SERV60


5. Title
Draft Act amending the Network Enforcement Act


6. Products Concerned
Providers of social networks and video-sharing platforms


7. Notification Under Another Act
-


8. Main Content
The Network Enforcement Act (NetzDG) obliges large social networks to operate a complaints management system, which they must use to receive and review user complaints and to remove or block illegal, i.e. criminal, content.

The draft act adapts the NetzDG to the new requirements of Directive (EU) 2018/1808, which amended Directive 2010/13/EU on audiovisual media services (AVMSD). The AVMSD contains new requirements for compliance provisions to protect against unacceptable content on video-sharing platform services. The NetzDG already covers some of these services. However, unlike the NetzDG in force, the AVMSD also requires the introduction of compliance requirements for small and subject-driven providers.

The division of competences between the Member States, as regulated by the AVMSD, is observed. In the case of video-sharing platform services that are established in or are deemed to be established in another Member State, it is considered that the minimum harmonised degree of protection according to Article 28b AVMSD for certain content is guaranteed by the other Member State. In this context, the primary competence of the country of domicile is observed in accordance with Article 28a(1) AVMSD. Competence may arise for the German authorities in the market in accordance with Article 28a(5) AVMSD in conjunction with Article 3(4) of Directive 2000/31/EC (e-Commerce Directive) only in cases of particular necessity and only after a consultation procedure with the country of domicile.

The AVMSD is transposed in §§ 3d to 3f NetzDG. § 3d NetzDG contains the necessary definitions and rules for determining the relevant Member State pursuant to Article 28a(1) AVMSD in which a provider is established or is deemed to be established. § 3e(1) NetzDG stipulates that the requirements of the NetzDG apply to video-sharing platform services covered by this, but taking into account the special rules in § 3e(2) to (4) NetzDG regarding smaller and foreign providers in particular. These special rules apply to user-generated videos and programmes covered by the AVMSD, while text content, for example, remains unaffected and, as such, there is no restriction of the previous applicability of the NetzDG. § 3f NetzDG establishes an official arbitration body for disputes with video-sharing platform services.

The draft act provides for further changes that, in particular, will improve the legal position of users in relation to social networks in the event of a dispute about action taken by the network, such as the deletion of content, and will ensure greater transparency.

In view of the experience gained from previous transparency reports, the information content and comparability of the transparency reports pursuant to § 2 NetzDG are to be increased. For example, changes in the transparency reports compared to previous reporting periods and possible reasons for this are to be reported in future. To make it easier for the public to compare reports from different providers, the reports should in future contain a summary of essential information. In future, it will also be necessary to report on the handling of appeals (e.g. the number of put-backs) and the basic functioning of automated processes when finding content to be removed, if the provider uses such processes. In addition, providers will in future report on whether and to what extent science and research are granted access to potential insights for anonymised evaluation, concerning specific effects of illegal content, coordinated behaviours in its dissemination, and the linking of illegal content to particular personal characteristics.

The second sentence of § 3(1) NetzDG is amended to clarify that the reporting channels via which complaints about illegal content can be transmitted must be easy to use and must be easily recognisable and immediately accessible from the content. This again clarifies that a hard-to-find, long or complicated click path from the content to be reported to the option to submit a complaint is not consistent with the law.

The newly created § 3b NetzDG introduces an appeals procedure. This ensures that both complainants and content writers can easily have a content decision reviewed by a social network reviewer.

§ 3c NetzDG introduces the possibility of recognition for an arbitration body organised under private law. Such arbitration can help in finding an out-of-court solution to disputes between complainants/users and the provider.

§ 4a NetzDG introduces supervisory powers and authorities for the Federal Office of Justice.

§ 5(1) NetzDG clarifies that complaints may be delivered to the address for service via which the unfounded acceptance of the existence of illegal content is asserted. In particular, this covers reinstatement complaints seeking the restoration of content removed by the network with an explanation of the reasons or asserting the inadmissibility of the blocking of an account on this basis.

According § 5(2) NetzDG, the names of the persons entitled to receive information as domestic contact persons for the law enforcement authorities must in future be provided directly to the Federal Office of Justice, which may in turn share this information with the law enforcement authorities.

§ 14(3) and (4) of the Telemedia Act (TMG) is supplemented such that, in future, the court dealing with the decision on the admissibility of data disclosure may at the same time impose the obligation to disclose data.


9. Brief Statement of Grounds
The need to combat criminal hate speech online remains unchanged. Citizens are entitled to expect that criminal attacks, as well as incitement to hatred or threats, will not be tolerated. This also applies online. In addition, criminal hate speech can become a breeding ground for physical assaults on citizens. Criminal hate speech can also cause extreme intimidation, which, in addition to individuals' freedom of expression and freedom of action, endangers democratic discourse and thus the foundations of our democracy as a whole.

The approach of the NetzDG, which came into force on 1 October 2017, of substantiating the existing responsibility of the providers of social networks when dealing with complaints about illegal content (notice and take down) has proven its worth.

Previous practical experience with the NetzDG shows that certain regulations should nevertheless be further developed. The NetzDG also needs to be adapted to the new requirements of the AVMSD.

The additions in the present draft substantiate the complaints management system already introduced by the NetzDG (e.g. the appeals procedure and the requirements for regulated self-regulation bodies) and thus fall within the procedures to be regulated by the second clause of Article 14(3) of the e-Commerce Directive. The present draft does not tighten the requirements for checking and, if necessary, swiftly removing or blocking content. The rules on arbitration do not lead to any obligation on the part of providers to restrict the provision of services, especially since Article 17 of the e-Commerce Directive does not intend to restrict national extra-judicial dispute settlement mechanisms.


10. Reference Documents - Basic Texts
Reference(s) to basic text(s): Network Enforcement Act of 1 September 2017 (Federal Law Gazette I I p. 3352)
https://www.gesetze-im-internet.de/netzdg/NetzDG.pdf

Telemedia Act of 26 February 2007 (Federal Law Gazette I p. 179), last amended by Article 11 of the Act of 11 July 2019 (Federal Law Gazette I p. 1066)
https://www.gesetze-im-internet.de/tmg/TMG.pdf


11. Invocation of the Emergency Procedure
No


12. Grounds for the Emergency
-


13. Confidentiality
No


14. Fiscal measures
No


15. Impact assessment
As a result of the draft, providers of social networks will incur one-off compliance costs of EUR 284 000 and annual compliance costs of EUR 2 279 000. Of these costs, a direct transposition of Article 28b of Directive 2010/13/EU (AVMSD) accounts for one-off costs of EUR 45 400 and annual costs of EUR 89 400. The Federal Government will incur annual compliance costs amounting to EUR 1 064 987.22. Additional costs of EUR 63 000 per year are expected for the administrations of justice of the federal states.


16. TBT and SPS aspects
TBT aspect

No - the draft has no significant impact on international trade.

SPS aspect

No - the draft has no significant impact on international trade.

**********
European Commission

Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
email: grow-dir2015-1535-central@ec.europa.eu

Stakeholders Contributions

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en
  eco - Association of the Internet Industry on 22-05-2020
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 eco - Association of the Internet Industry e.V. is repetitive committed to the fight against illegal content and supports the fight against illegal contents online.

While the draft act was revised in some aspects prior to the submission for notification, attention should be drawn to the following issues critzied by eco with regard to the notified draft act:

  • The disregard of the liability regime under the E-Commerce Directive
  • The establishment of out-of-court procedures
  • The unequal treatment of social network operators and video-sharing platform services
  • The national implementation of regulations in contradiction to the requirements of the Audiovisual Media Service Directive
  • The country-of-origin principle not taken into account
  • Current legal developments at EU level
The full statement can be found in the attachment.

 


en
  EuroISPA (European Internet Services Providers Association) on 12-05-2020
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To whom it may concern, please find attached EuroISPA’s points of critique on the German Draft Act amending the Network Enforcement Act (NetzDG).