By Prof. Dr. Stefan Engels and Thomas Fuhrmann, LL.M. (University of Cape Town)
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1. In general
Since 1 October 2017 the Act to Improve Enforcement of the Law in Social Networks (Network Enforcement Act) 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. This article is also an update to our earlier article about the Network Enforcement Act.
2. Who does it apply to?
As stipulated in sec. 1 (1) sentence 1 Network Enforcement Act, 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 sec. 1 (1) sentence 2 and 3 Network Enforcement Act, 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 sec. 2 Network Enforcement Act and the regulations of sec. 3 Network Enforcement Act.
Additionally, it should be noted that providers of social networks, which fulfil the requirements of sec. 1 Network Enforcement Act, had to introduce the procedures for dealing with complaints under sec. 3 Network Enforcement Act only three months after the law came into force (1 January 2018), sec. 6 (2) sentence 1 Network Enforcement Act. In case the requirements of sec. 1 Network Enforcement Act were or will be fulfilled on a later date, then from this point on there will be a period of three months for the introduction of these procedures, sec. 6 (2) sentence 2 Network Enforcement Act.
3. What does it concern?
The Network Enforcement Act shall ensure that certain unlawful content is removed or blocked after a complaint was lodged. Sec. 1 (3) Network Enforcement Act defines unlawful content as content that fulfils the requirements of such regulations of the Criminal Code which affect the protection of the democratic constitutional state, public order, personal honour and sexual self-determination, e. g. using symbols of unconstitutional organisations under sec. 86a Criminal Code, dissemination of depictions of violence under sec. 131 Criminal Code, distribution, acquisition and possession of child pornography under sec. 184b Criminal Code or Insult under sec. 185 Criminal Code. According to the explanatory memorandum to the Network Enforcement Act (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.
4. What needs to be done?
According to sec. 3 (2) No. 1 Network Enforcement Act, 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 sec. 3 (2) No. 2 Network Enforcement Act, manifestly unlawful content 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 sec. 3 (2) No. 3 Network Enforcement Act, the access to other unlawful content 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, under sec. 3 (3) No. 3 lit. a) Network Enforcement Act, the provider of the social network can give the user an opportunity to respond to the complaint before the decision is rendered. In addition, sec. 3 (3) No. 3 lit. b) Network Enforcement Act allows the provider of 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, sec. 3 (2) No. 4 Network Enforcement Act.
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, sec. 3 (2) No. 5 Network Enforcement Act.
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, sec. 3 (4) Network Enforcement Act.
In addition, as stipulated in sec. 2 (1) Network Enforcement Act, 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. Sec. 2 (2) Network Enforcement Act regulates the minimum aspects the report shall cover.
Finally, in accordance with sec. 5 Network Enforcement Act, 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.
5. Who has to pay and when?
Under sec. 4 (2) Network Enforcement Act, regulatory offence may be sanctioned with fines of up to 5 million EUR. In accordance with sec. 4 (1) Network Enforcement Act, the regulatory offence may be imposed for the failing to produce the report stipulated in sec. 2 (1) Network Enforcement Act, or the incorrect, incomplete or untimely preparation or publication of this report or for breaches of the procedural obligations stipulated in sec. 3 (1) and (4) Network Enforcement Act. Fines of up to 500,000 EUR 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 sec. 5 Network Enforcement Act or fails to respond to requests for information while acting as the person authorised to receive service, sec. 4 (2) Network Enforcement Act.