The German Implementation Act for the Digital Services Act (DSA) was proclaimed on 13 May 2024 and entered into force on 14 May 2024 (please find further information here and the final text here). As its core regulation, it contains the German Digital Services Act ('Digitale-Dienste-Gesetz', DDG) which implements the DSA at national level. This means that the newly designated Digital Services Coordinator for Germany can start taking on its role officially and the enforcement of the DSA in Germany may be right around the corner.
While the DSA regulates due diligence and transparency obligations for online services in the fight against disinformation and hate speech on the internet as well as its enforcement at EU level (mainly for providers of so-called very large online platforms and very large search engines), the DDG specifies the roles and responsibilities of authorities as well as the enforcement of administrative fines in Germany.
Designation of the Federal Network Agency as German DSC and further designations of German authorities
Unsurprisingly, the Federal Network Agency ('Bundesnetzagentur', BNetzA) has been designated as Digital Services Coordinator (DSC) for Germany. The BNetzA in its role as DSC will from now on be responsible for the supervision and enforcement of the DSA in Germany and will therefore set up an independent coordination office for digital services (“Koordinierungsstelle für Digitale Dienste”) to take over these tasks.
In addition to the DSC designation, the DDG creates special responsibilities for German authorities: The monitoring of the protection of minors in the digital space will lay within the responsibility of the Federal Agency for the Protection of Children and Young Persons in the Media ('Bundeszentrale für Kinder- und Jugendmedienschutz') as well as of the state media authorities ('Landesmedienanstalten') for certain specialised tasks. The Federal Commissioner for Data Protection and Freedom of Information ('Bundesbeauftragte für den Datenschutz und die Informationsfreiheit') will supervise certain restriction on the usage of special categories of personal data for profiling-based advertising on online platforms and the Federal Criminal Police Office ('Bundeskriminalamt') will in future be acting as a central reporting office for suspicions of criminal offences.
Administrative fines and periodic penalties
The DDG sets out the fines and periodic penalties for non-compliance with the DSA for companies falling under the jurisdiction of the German DSC, namely for providers of intermediary services (eg mere conduit-, caching- and hosting services as well as online platforms and online marketplaces) which have their main establishment in Germany (but excluding very large online platforms and very large search engines). It follows a staggered approach depending on the significance of the identified non-compliance:
- Administrative fines of up to € 100,000 will be possible for violations of certain information obligations (eg no explanation of restrictions for use of the services by minors in the T&C) and transparency obligations (eg no publication of information on a single point of contact) and can be raised for some of these violations to a maximum of 1% of a service’s total worldwide annual turnover, if the service’s annual turnover is more than € 10,000,000.
- For violations of important obligations (eg non-provision of a notice-and-take-down system or lack of statements of reason for content restrictions or account suspensions) administrative fines can reach up to € 300,000 which can further be raised to a maximum of 6% of a service’s total worldwide annual turnover for certain violations, if the service’s annual turnover is more than € 5,000,000.
- Further, periodic penalties of up to 5% of the average daily income or worldwide annual turnover per day are possible to enforce orders of the BNetzA or other competent authorities.
An administrative fine can already be imposed for a negligent violation.
Overriding the Telemedia Act and the majority of the Network Enforcement Act in Germany
The DDG partially streamlines the obligations for online service providers in Germany.
The Telemedia Act has therefore been completely repealed. However, most of its obligations can now be found with only minor wording updates in the German Implementation Act (eg the imprint obligation) or are adapted in the light of the DSA (eg the responsibility rules for mere conduit services providers).
Due to the overlap of the provisions of the Network Enforcement Act with the DSA, the provisions of the Network Enforcement Act are also largely repealed (with an exception only for provisions on the domestic authorized recipient for entities located outside the EU).
What’s on the horizon now?
As the designation of the BNetzA had been politically agreed upon already last year and therefore was already anticipated, the BNetzA has already begun to prepare for its new tasks.
It commissioned a study to gain an overview of the relevant services in Germany that will fall within the scope of the DSA. This study has identified a total of 2.358 providers of hosting services, 977 providers of online marketplaces, 494 mere conduit services providers and 485 providers of online platforms that are potentially in scope of the DSA and fall under the enforcement authority of the BNetzA. The BNetzA has, however, not published the list of the respective identified providers.
Furthermore, the BNetzA already launched a website for its role as a DSC that, among other things, provides information for providers as well as the possibility for users to complain via an online form about alleged non-compliance with the DSA of in-scope providers (this includes e.g. a lack of a statement of reason for account suspensions or non-compliance with transparency obligations like non-transparent or misleading provisions in the provider’s T&Cs).
In addition, entities can start to apply to be awarded a so-called “'trusted flaggers' status. Trusted flaggers are privileged whistleblowers under the DSA. If they report suspected illegal content, platform providers need to prioritize the reports and process and decide on them without undue delay.
As the BNetzA seems ready to take over its new tasks, it can be expected that it will soon start the first investigative and enforcement actions. In-scope entities should therefore be prepared and (re-)assess their compliance with the DSA to avoid fines.