Authors

Dr. Gregor Schmid, LL.M. (Cambridge)

Partner

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Alexander Schmalenberger, LL.B.

Knowledge Lawyer

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Dr. Thorsten Troge

Partner

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Nathalie Koch, LL.M. (UC Hastings)

Senior Associate

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Authors

Dr. Gregor Schmid, LL.M. (Cambridge)

Partner

Read More

Alexander Schmalenberger, LL.B.

Knowledge Lawyer

Read More

Dr. Thorsten Troge

Partner

Read More

Nathalie Koch, LL.M. (UC Hastings)

Senior Associate

Read More

14 May 2024

Digital Services Act (DSA) - an overview

DDG lays the foundation for enforcing the EU Digital Services Act in Germany

  • Briefing

Proclaimed on May 13, 2024, the German Digital Services Act (DDG) comes into effect on May 14, 2024, creating the essential national framework required for the effective implementation of the EU Digital Services Act (DSA) in Germany, including adjustments in jurisdictions and duties of information.

The European Union's Digital Services Act (DSA), which came into force on 16 November 2022, created a uniform legal framework for all digital intermediary services. The DSA aims to ensure a safe and trustworthy online environment in the EU and provide effective consumer protection. It has been generally in force since 17 February 2024 and for designated ‘very large online platforms’ since 2023. The Digital Services Act (DDG), which was promulgated on 13 May 2024, adapts the national legal framework to the requirements of the DSA and will enter into force together with other articles on 14 May 2024.

TMG out of force; information obligations: Adaptation of references

When the DSA came into force, the Telemedia Act (TMG) will also cease to apply. The previous provisions of the TMG on responsibility are largely no longer applicable and are now covered by Art. 4 et seq. DSA without any significant changes in content. As a result of this and the simultaneous repeal of the TMG, the previous references to the TMG must also be adapted, for example Section 5 of the German Telemedia Act (TMG) must be replaced by Section 5 DDG. This applies in particular to the legal notice on websites if it still expressly refers to Section 5 TMG. The same applies to any references in the legal notice or a privacy policy to the Telecommunications Telemedia Data Protection Act (TTDSG); in future, this will be known as the Telecommunications Digital Services Data Protection Act (TDDDG). Other changes include the Network Enforcement Act.

Competences: Clarity for platforms and services

The competence for the very large online platforms and the very large online search engines remains with the EU Commission in Brussels. National competence remains for other smaller digital services intermediaries with an establishment or legal representative in Germany and those without an establishment outside the EU and without a legal representative with activities in Germany. For the DSA, this already results directly from the Regulation. Special rules apply to video platforms and other audiovisual media services, depending on their place of administration, as the Audiovisual Media Services Directive is relevant here.

Federal Network Agency becomes the competent national authority for enforcing the DSA

The Federal Network Agency is designated as the competent national authority - the Digital Services Coordinator under (Art. 49 DSA) - as the competent authority for almost all aspects of the DSA to ensure efficient supervision and enforcement of the rules. The Federal Network Agency has also activated important functions on its website in time for the entry into force of the DSA. There, providers can obtain information and consumers can submit reports.

Above all, organisations can now register with the Federal Network Agency as so-called Trusted Flaggers (see the Federal Network Agency's guidelines). Trusted flaggers are public and private organisations with special expertise and experience in identifying and reporting illegal content. Online platforms are obliged to prioritise reports from trusted flaggers over reports from other users and to take immediate action (e.g. deletion of content). The guidelines also explicitly name organisations of intellectual property owners as authorised trusted flaggers. IP rights holders may therefore soon be able to enforce their rights more easily in this way.

Specialised authorities such as the Federal Agency for Child and Youth Media Protection and, in relation to profiling, the Federal Commissioner for Data Protection and Freedom of Information will be responsible for specific tasks such as the protection of children and young people and data protection. The Federal Criminal Police Office, as the central office, will receive reports of suspected offences under Art. 18 DSA.

Further regulation: Enforcement of the P2B Regulation

Enforcement of the Platform-to-Business Ordinance (P2B Ordinance) will be assigned to the Federal Network Agency. This takes into account the close thematic links to antitrust issues and aims to achieve coherent handling and enforcement, which was previously fragmented by individual rights and parallel competition law regulations.

Last but not least - penalties

Section 33 of the DDG sets out provisions on fines for various administrative offences. These mainly concern offences against statutory information, disclosure, verification and access obligations under the DDG and the DSA and against the P2B Regulation. The specific cases to which the fines relate are as follows:

  • disguising or concealing the sender or the commercial nature of a message.
  • failure to provide, incorrect, incomplete or late provision of information in accordance with various sections of the Act, sometimes in conjunction with articles of the DSA.
  • violations of the P2B Regulation, such as failure to provide recognisable identities, failure to provide justifications in a timely manner or failure to provide certain options for business users.

The fines vary depending on the severity of the offence, with some going up to 300,000 euros. In more serious cases, especially for legal entities or associations of persons with a high annual turnover, the penalties can even be up to 6 per cent of the annual turnover.

Source

The Digital Services Act is published in the Federal Law Gazette at the following link: BGBl. 2024 I No. 149 of 13.05.2024.

In this series

Information technology

Digital Services Act (DSA): What digital intermediaries need to know

21 February 2024

by Multiple authors

DSA National Implementation

17 February 2024

by Multiple authors

Technology, media & communications

145 days DSA for VLOPs: The takeaways for smaller service providers

17 January 2024

by Multiple authors

Technology, media & communications

A snapshot of the DSA’s impact on media companies

Philipp Koehler and Thomas Walter look at the issues faced by many media companies when deciding whether or not they fall within scope of the EU’s Digital Services Act.

12 June 2023

by Philipp Koehler, Thomas Walter

Technology, media & communications

Overview Digital Legislation EU

1 February 2023

by Thanos Rammos, LL.M.

Technology, media & communications

Digital Services Act – an overview

Gregor Schmid and Philipp Koehler highlight the key elements of the incoming EU Digital Services Act.

19 September 2022

by Dr. Gregor Schmid, LL.M. (Cambridge), Philipp Koehler

Technology, media & communications

The EU's DSA and the UK's OSB: a comparison of their approaches to online safety

Adam Rendle looks at the differences and similarities in the approach of the EU and UK to online safety under incoming legislation.

19 September 2022

by Adam Rendle

Technology, media & communications

What is the scope of the Digital Services Act?

Alexander Schmalenberger looks at the scope of the Digital Services Act, what it covers and who is caught.

19 September 2022

by Alexander Schmalenberger, LL.B.

Technology, media & communications

Online intermediaries and illegal content under the Digital Services Act

Johanna Götz looks at the DSA's approach to online intermediary responsibility for illegal content.

19 September 2022

by Dr. Johanna Götz

Technology, media & communications

Duties under the Digital Services Act

Alexander Schmalenberger looks at the main obligations on intermediaries (other than those relating to illegal content).

19 September 2022

by Alexander Schmalenberger, LL.B.

Technology, media & communications

The DSA: advertising, dark patterns and recommender systems

Maarten Rijks and Annemijn Schipper look at the impact of the DSA on targeted advertising and the use of dark patterns and recommender systems.

19 September 2022

by Maarten Rijks, Annemijn Schipper

Technology, media & communications

New KYBC obligations for online platforms

Sasun Sepoyan and Otto Sleeking look at the impact of Article 24c of the DSA.

19 September 2022

by Sasun Sepoyan, Otto Sleeking

Technology, media & communications

National enforcement of the Digital Services Act

Elisa-Marlen Eschborn looks at the Member State enforcement provisions of the DSA.

19 September 2022

by Elisa-Marlen Eschborn, LL.M. (Turin)

Data & cyber

Digital Services Act (DSA) - an overview

by Multiple authors

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