Federal Digital Minister Volker Wissing (FDP) presented the draft of the “Digital Services Act” (DDG) on Friday, with which the European Digital Services Act (DSA) is to be transferred into German law. According to the draft, the Federal Network Agency should have overall supervision of enforcement. The role played by other authorities has not yet been fully clarified.
The draft bill from the Federal Ministry for Digital Affairs and Transport (BMDV) is almost 100 pages long. However, the decisive open question is answered in just six pages in the law, which is now being voted on within the Federal Government: A separate coordination office will be created at the Federal Network Agency in Bonn, which will be responsible for the national implementation of the DSA.
“Strong Platform Oversight”
“With the Federal Network Agency, we are creating strong platform supervision in order to consistently enforce the new obligations for online services in Germany,” said Wissing on Friday in Berlin. “By doing so, we are making the platform operators more responsible for fighting illegal content.”
With the DSA, the EU has created a legal framework that imposes stricter rules on operators of platforms, search engines and online marketplaces. The extensive body of legislation regulates, among other things, which structures platform operators must maintain in order to counter illegal use. In Germany, the Digital Services Act will, among other things, replace the Network Enforcement Act (NetzDG) when it comes to user content in social media.
The EU Commission is responsible for enforcement for the largest providers, while smaller ones are subject to supervision by the competent national authorities. Here in Germany it was controversial which authority and which level is the best: the federal states are responsible for media regulation in Germany, other tasks according to the DSA lie with other actors.
It became apparent early on that the federal government favored a solution in which the Federal Network Agency played a central role. However, as a subordinate authority of the Federal Ministry of Economics and Climate Protection (BMWK), it does not easily meet the high requirements of the DSA for the independence of the supervisory authority, which is why criticism came in particular from the state media authorities.
Independent in the Federal Network Agency
The BMDV wants to defuse the criticism with the way it has now found its own, particularly independent supervision at the Federal Network Agency. Although this is formally part of the Federal Network Agency, it should not be bound by instructions and should act as the central contact for the responsible bodies in other EU member states and the EU Commission. The EU Commission directly supervises the largest providers of platforms and search engines.
However, other bodies should expressly be responsible for enforcing certain provisions of the DDG. For example, the Federal Agency for the Protection of Children and Young People in the Media (BzKJ) is to take over the German enforcement of the minimum age requirements. The Federal Data Protection Commissioner should be responsible for regulations on online advertising. The central reporting office for criminal content at the Federal Criminal Police Office is to take over illegal content from hosting providers and social networks.
The role that the Federal Office of Justice in Bonn, which has been responsible for enforcing the Network Enforcement Act, will play is currently unclear. The role of the state media authorities has not yet been firmly established either; the federal states are still involved here. The Federal Association of Consumers warns of a “ping-pong of authorities in search of the right contact person”.
The Digital Services Act is to come into force on February 17, 2024, while the Network Enforcement Act is to expire at the same time. The law is to be discussed in the cabinet in early autumn.
Update 08/04/2023 2:40 p.m
It’s good that the draft of the DDG is now available, says Oliver Süme, head of the Eco Association of the Internet Industry. From the association’s point of view, it is now important “to maintain fair and reasonable liability rules, to clarify aspects of the notice-and-take-down framework, and to ensure legal certainty and clear definitions.”
Lina Wöstmann, Advisor for Media Policy and Platforms at Bitkom, welcomes the fact that the NetzDG will come to an end with the DDG. The NetzDG has represented a German special way, which is now being replaced by a European solution. The IT association also welcomes the appointment of the Federal Network Agency as digital services coordinator.
“However, the draft bill still leaves a few points open: among other things, the inclusion of other authorities, in particular a potential role for the Federal Office of Justice,” criticizes Wöstmann. However, it is “essential that regulated companies have a fixed national contact person and can rely on binding statements without having to address several supervisory authorities at the same time.” Bitkom fears that the coordination effort could increase.
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