The regulation of online platforms and other internet intermediaries continues to be a focus area of EU and Member State legislators. On the EU level, the EU Digital Services Act (DSA) entered into force and will become applicable for very large online platforms (VLOPs) in August 2023 already (see here and here for our previous coverage on the DSA). In parallel, there is lots of movement on Member State level, as almost weekly national lawmakers announce new proposals for what they want to add to the online regulatory framework.

The German government now joined this movement and recently published a position paper introducing the corner stones for a new “Act against Digital Violence”. The bill is still in the very early stages: Interested parties may submit their comments and observations by 26 May 2023. An actual draft of the law will then follow in the second half of 2023.

Despite the ambitious title of the new law, the position paper indicates the upcoming rules will be more technical – but nonetheless important to observe for all online intermediaries as they will (again) be in the crosshairs.

Background

Victims of hate speech and personality rights violations online frequently face a situation where the rights they enjoy under existing laws cannot be enforced in a meaningful and efficient way. More often than not, the offenders hide behind fake accounts. Even if their victim gets a hold of them, the path to justice is long and burdensome – it may take months if not years to identify the person responsible for a slur comment, let alone to eventually hold this person accountable and to prevent future infringements. Sometimes, the only way for a victim to pursue the infringement was through filing a criminal complaint with law enforcement authorities.

In some instances, it was even completely impossible for the victim to request information about the offender, in particular when the personality rights violation did not amount to one of the criminal offences listed under Sec. 1(3) of the German Network Enforcement Act (NetzDG, which is going to be repealed once the DSA becomes applicable for all online intermediaries).

These protection gaps were addressed only partially by EU lawmakers in the DSA. While the DSA does oblige online platforms to investigate and remove illegal content upon submission of a corresponding notice, and also to suspend repeat offenders, the EU law does not provide the victims with ancillary instruments to identify the offenders “in real life” and to enforce their rights with the help of the courts.

Key aspects of the new law

The German government saw these protection gaps and intends to close them with the “Act against Digital Violence”. The upcoming bill is supposed to provide victims with the procedural tools needed to enforce their rights quickly and efficiently – and through direct involvement of the provider of the online platform concerned.

What are the new rights?

To this end, the law will introduce new substantive rights for victims, namely:

• Information claims: Any person whose rights are infringed will be entitled to request “inventory data” on the presumed offender. This will include, for instance, name, addresses and email addresses. In addition, the victims may also request “usage data”, such as IP addresses, when proportionate and necessary for enforcement.
  
  These information claims shall apply regardless of whether the content in question constitutes a criminal offense – and can be directed against online platforms, messenger services and internet access providers alike.
• Suspension claims: In case of severe personality rights violations, the victim shall also be entitled to request a court order obliging the concerned service provider to suspend the offender’s account for a reasonable amount of time. This quite drastic tool shall serve as a “last resort” measure against notorious offenders where mere moderation of the content is not sufficient to prevent repeat infringements.

What are the new procedural tools for information claims?

The lawmakers realized that for the expanded information claims to be meaningful in practice, they need to be accompanied by procedural tools allowing for effective enforcement:

• Preservation of evidence: Online intermediaries may be requested by court order (i) to secure the inventory and usage data of a specified offender and (ii) to disclose this data to the court before a final decision is made on the claims of the victim.
• Preliminary injunctions: In case of obvious infringements, the courts may order preliminary injunctions requiring online intermediaries to also disclose the data to the victim (a mechanism that already exists today for IP rights after which the new rights are explicitly modelled).
• Facilitated proceedings: The information claims proceedings will be free of court fees. In addition, and also atypically for German civil proceedings, the court itself will be legally required to investigate the alleged infringement (“Amtsermittlungsgrundsatz”).
• One-stop-shop: Finally, the competence for all orders and proceedings will lie with the Regional Courts (“Landgericht”), which shall have jurisdiction not only over information claims but also for all further claims for removal, injunction and damages.

What are the new administrative rules for online intermediaries?

In addition to the above procedural rules, the upcoming law will likely also require all providers of social media platforms to name a domestic representative in Germany authorised to receive service of legal documents. A similar obligation limited to documents from courts and authorities already exists today under Section 5 NetzDG. The reiteration is necessary as the NetzDG will be repealed once the DSA becomes applicable to all online intermediaries in February 2024.

Who benefits from this new law?

While it is clear that the law primarily aims to empower victims of hate speech and online slurs, it is less clear who else might enjoy the new rights. The position paper proposes that the new rules shall apply with respect to infringements of all “absolute rights”. However, if that was the case, the law would capture much more cases than suggested by its title.

One use case expressly mentioned in the explanatory memorandum is “restaurant reviews”. While such reviews can barely ever qualify as “digital violence”, it does make sense to address cases like these in the law as they have a close connection to personality rights. In fact, German law acknowledges “personality rights” for companies and entrepreneurs as absolute rights.

That said, IP rights are absolute rights, too. The explanatory memorandum claims, for instance, that the law is not meant to improve the enforcement of IP laws because these laws already provide for information claims. While this is true to some extent with the national implementations of Art. 8 Enforcement Directive (2004/48/EC), not all of the new rules outlined above apply to IP information claims today. So while IP right owners would therefore benefit from the new rules, too, extending their rights against users and platform operators is much less popular than tackling actual “digital violence”. It remains to be seen whether or not the first draft of the bill included IP rights.

Interplay and conflict with the DSA

German lawmakers claim in their explanatory memorandum that the new law will be supplementary and thus fully compatible with the DSA, as the latter would barely regulate private enforcement of user rights. While this observation is not incorrect, it remains highly questionable whether all parts of the new law may stand next the DSA. Notably, it was one of the DSA’s main goals to harmonize online platform regulation across the EU and to prevent fragmented, single-handed legislation in different Member States.

As far as information claims and procedures are concerned, there is indeed very little overlap and conflict with the DSA. In this context, Article 10 DSA only imposes certain formal notification obligations but does not regulate information claims nor their enforcement.

More potential for conflict exists for suspension claims. Article 23 DSA already requires online platforms to suspend repeat offenders for a reasonable time where they frequently provide manifestly illegal content. The provision also lists a number of criteria that online platforms shall take into account when deciding on a suspension. However, this obligation is for the DSA regulators to enforce; it does not confer any direct rights to victims. The relationship between the new law and Article 23 DSA will therefore have to be clarified further, presumably in court.

Lastly, the (continued) obligation for social media providers to name a domestic representative may run counter to Article 11 and 12 DSA which require all intermediary services in the EU to designate pan-EU single points of contact both for communication with authorities and for communication with users. These pan-EU points of contact could fulfil the role that the domestic representative is supposed to have under the new German law, hence leaving little room for additional national requirements. In fact, it runs counter to the DSA’s goal to achieve harmonization if social media platforms could still be obligated to designate national representatives in all 27 EU Member States. Therefore, the compatibility of this provision with the DSA will be subject to further debate, too.

Outlook

Interested providers of online platforms and intermediary services still have time to comment on the position paper by 26 May 2023. The government lawmakers will continue drafting the bill over summer, taking into account the feedback received, and publish the first draft in the second half of 2023.

The draft bill will then be discussed in the German Parliament. As some parts of the bill will be quite controversial – in particular with respect to storage and disclosure of IP address data and account suspensions – we expect the bill to cause some debate, but to be passed eventually in early to mid-2024.

Providers of online platforms and other intermediary services should observe the developments on the “Act against Digital Violence” closely, as well as all other pieces of legislation that keep emerging in the EU Member States. As the political pressure to regulate online businesses continues to be high, new laws will often pass quickly. For providers concerned, horizon scanning and preparation is key to stay on top of all developments and requirements.

Authored by Florian Richter.

DSA Taskforce

Our multi-jurisdictional DSA Taskforce closely follows all developments of the legislative process. We will provide further regular updates on key developments. For details of our DSA taskforce and our related publications click here.