NetzDG becomes the Digital Services Act
The Network Enforcement Act (NetzDG) was not invented by a single person, but developed by the German federal government. The law came into force in Germany on October 1, 2017. It was initiated by the then Justice Minister Heiko Maas (SPD) and decided by the federal government. The aim of the law is to improve the fight against criminal content on the internet, especially on social networks. It establishes certain obligations for social network operators to combat and expedite the removal of hate speech, fake news, hate speech and other criminal content. This law has now been renamed the DSA (Digital Services Act) and thoroughly revised.
You may have heard of the DSA (Digital Services Act). In Germany it is also known as the law for digital services. The main objective of the DSA is to better protect EU citizens from disinformation, hate speech and illegal services. An important measure here is stronger regulation of large tech companies such as Facebook, Google, Apple and similar companies. There is a call to introduce a reporting system that will allow illegal content to be quickly removed from the Internet. At the same time, users are assured that they will be informed about the deletion of their content in order to protect their freedom of expression. They should also have the opportunity to appeal this decision.
NetzDG becomes the Digital Services Act
The Network Enforcement Act (NetzDG) was not invented by a single person, but developed by the German federal government. The law came into force in Germany on October 1, 2017. It was initiated by the then Justice Minister Heiko Maas (SPD) and decided by the federal government. The aim of the law is to improve the fight against criminal content on the internet, especially on social networks. It establishes certain obligations for social network operators to combat and expedite the removal of hate speech, fake news, hate speech and other criminal content. This law has now been renamed the DSA (Digital Services Act) and thoroughly revised.
You may have heard of the DSA (Digital Services Act). In Germany it is also known as the law for digital services. The main objective of the DSA is to better protect EU citizens from disinformation, hate speech and illegal services. An important measure here is stronger regulation of large tech companies such as Facebook, Google, Apple and similar companies. There is a call to introduce a reporting system that will allow illegal content to be quickly removed from the Internet. At the same time, users are assured that they will be informed about the deletion of their content in order to protect their freedom of expression. They should also have the opportunity to appeal this decision.
The Digital Services Act
The Digital Services Act
Intermediary service providers must gradually implement the provisions of the DSA by February 17, 2024 at the latest. In view of the extensive requirements, the time available is limited. It is advisable for companies to quickly check whether they are affected by the new obligations. They should then adapt their compliance structures in a timely manner, make necessary changes to the services and adjust their general terms and conditions accordingly.
The EU Commission has taken the first decisions under the Digital Services Act (DSA) and in doing so has identified 17 very large online platforms (Very Large Online Platforms, VLOPs) and two very large online search engines (Very Large Online Search Engines, VLOSEs). These platforms and search engines reach at least 45 million monthly active users. However, it surprisingly turned out that well-known portals for pornographic content have fewer users than was assumed – either the number was deliberately given lower or fewer users were actually reported. Which is more likely.
The following were initially named as “very large platforms“:
Liability for Illegal Content
It is of great importance that the DSA maintains the liability privileges for online services already known in the E-Commerce Directive and the German TMG when it comes to the distribution of illegal content by users. According to this, online services are not liable themselves if users spread illegal content via their platforms. Providers only have to act when they become aware of illegal content and there is no general obligation to monitor. The DSA supplements these regulations with uniform procedural requirements for authorities when it comes to ordering deletions or information.
Platform due diligence
The main requirements include the obligation to provide contact information for users and authorities and to set up a procedure for reporting and removing illegal content. Similar to the German NetzDG, there are specific procedural requirements for online platforms regarding content moderation as well as mandatory complaint and dispute resolution mechanisms. The DSA also contains comprehensive specifications for the service design, such as rules for the labeling of online advertising, the ban on manipulative design elements (so-called dark patterns) and measures to protect underage users. Trading platforms have additional verification requirements to curb trade in illegal goods and services.
Particularly strict rules apply to very large online platforms and search engines that have at least 45 million monthly active users in the EU. These services must examine the systemic risks of their platforms, including the dissemination of harmful content and its impact on elections, human rights and the mental health of users. You must take action to mitigate identified risks. An independent review of the risk assessment must be conducted annually. Therefore, comprehensive and continuous risk and compliance management (implementation of the law) will be required for very large services in the future.
Implementation and Sanctions
The DSA should not be an empty phrase. The European legislator has attached particular importance to effective and uniform enforcement of the DSA. Many of the regulations are a direct response to enforcement deficits that have emerged with the GDPR. One of the biggest innovations is that the monitoring of very large services has been largely centralized and delegated to the European Commission. There are extensive cooperation rights and obligations between national authorities. These authorities are given a number of effective enforcement powers, including the ability to block the service. Companies that violate the terms of the DSA can also face fines of up to 6% of their annual worldwide revenue.
In addition, the DSA makes it clear that, in addition to official enforcement, the private actors concerned are also entitled to take legal action. This continues the trend of supplementary so-called private enforcement of European legal acts and significantly increases the risk of sanctions and liability for companies. Affected private individuals also have the option of being represented by specialized associations and organizations before filing a lawsuit.
Intermediary service providers must gradually implement the provisions of the DSA by February 17, 2024 at the latest. In view of the extensive requirements, the time available is limited. It is advisable for companies to quickly check whether they are affected by the new obligations. They should then adapt their compliance structures in a timely manner, make necessary changes to the services and adjust their general terms and conditions accordingly.
The EU Commission has taken the first decisions under the Digital Services Act (DSA) and in doing so has identified 17 very large online platforms (Very Large Online Platforms, VLOPs) and two very large online search engines (Very Large Online Search Engines, VLOSEs). These platforms and search engines reach at least 45 million monthly active users. However, it surprisingly turned out that well-known portals for pornographic content have fewer users than was assumed – either the number was deliberately given lower or fewer users were actually reported. Which is more likely.
The following were initially named as “very large platforms“:
Liability for Illegal Content
It is of great importance that the DSA maintains the liability privileges for online services already known in the E-Commerce Directive and the German TMG when it comes to the distribution of illegal content by users. According to this, online services are not liable themselves if users spread illegal content via their platforms. Providers only have to act when they become aware of illegal content and there is no general obligation to monitor. The DSA supplements these regulations with uniform procedural requirements for authorities when it comes to ordering deletions or information.
Platform due diligence
The main requirements include the obligation to provide contact information for users and authorities and to set up a procedure for reporting and removing illegal content. Similar to the German NetzDG, there are specific procedural requirements for online platforms regarding content moderation as well as mandatory complaint and dispute resolution mechanisms. The DSA also contains comprehensive specifications for the service design, such as rules for the labeling of online advertising, the ban on manipulative design elements (so-called dark patterns) and measures to protect underage users. Trading platforms have additional verification requirements to curb trade in illegal goods and services.
Particularly strict rules apply to very large online platforms and search engines that have at least 45 million monthly active users in the EU. These services must examine the systemic risks of their platforms, including the dissemination of harmful content and its impact on elections, human rights and the mental health of users. You must take action to mitigate identified risks. An independent review of the risk assessment must be conducted annually. Therefore, comprehensive and continuous risk and compliance management (implementation of the law) will be required for very large services in the future.
Implementation and Sanctions
The DSA should not be an empty phrase. The European legislator has attached particular importance to effective and uniform enforcement of the DSA. Many of the regulations are a direct response to enforcement deficits that have emerged with the GDPR. One of the biggest innovations is that the monitoring of very large services has been largely centralized and delegated to the European Commission. There are extensive cooperation rights and obligations between national authorities. These authorities are given a number of effective enforcement powers, including the ability to block the service. Companies that violate the terms of the DSA can also face fines of up to 6% of their annual worldwide revenue.
In addition, the DSA makes it clear that, in addition to official enforcement, the private actors concerned are also entitled to take legal action. This continues the trend of supplementary so-called private enforcement of European legal acts and significantly increases the risk of sanctions and liability for companies. Affected private individuals also have the option of being represented by specialized associations and organizations before filing a lawsuit.
Conclusion
Conclusion
Although it will take a few years to see how authorities and courts apply the provisions of the DSA in practice, it is already clear that digital intermediation services will face increased compliance (compliance with the law) efforts. This applies in particular to providers of very large services. Not only do they have extensive due diligence requirements, but they have to do so four months after the European Commission decided to classify them as a very large service – even if that date is before February 17, 2024. Businesses should already be examining what changes they need to make in relation to their internal structures, the provision of their services and their general terms and conditions and set the appropriate processes in motion.
In addition, companies should also keep an eye on the other laws and legislative projects with which the EU is trying to regulate the digital world and which are part of the digital strategy of the Commission. These include the Data Governance Act and bills such as the Data Act and the AI Act. Particularly closely related to the DSA is the Digital Markets Act (DMA), which establishes special competition law rules of conduct for large platforms with a gatekeeper function in order to limit the market power of large digital groups.
Although it will take a few years to see how authorities and courts apply the provisions of the DSA in practice, it is already clear that digital intermediation services will face increased compliance (compliance with the law) efforts. This applies in particular to providers of very large services. Not only do they have extensive due diligence requirements, but they have to do so four months after the European Commission decided to classify them as a very large service – even if that date is before February 17, 2024. Businesses should already be examining what changes they need to make in relation to their internal structures, the provision of their services and their general terms and conditions and set the appropriate processes in motion.
In addition, companies should also keep an eye on the other laws and legislative projects with which the EU is trying to regulate the digital world and which are part of the digital strategy of the Commission. These include the Data Governance Act and bills such as the Data Act and the AI Act. Particularly closely related to the DSA is the Digital Markets Act (DMA), which establishes special competition law rules of conduct for large platforms with a gatekeeper function in order to limit the market power of large digital groups.
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