The NetzDG has been in force for two years now. It obliges social network providers (among others) to assess the legality of posted content and to decide whether it needs to be deleted. Systematic failure to handle complaints about illegal content and further non-compliance can lead to considerable fines.
Every six months, social network operators that receive more than 100 complaints per calendar year about unlawful content, have to publish a transparency report containing specified information including on their handling of the complaints. Twitter, Facebook and YouTube are some of the businesses which have filed NetzDG reports.
The Federal Office of Justice (Bundesamt für Justiz or FOJ) is authorised to monitor the compliance of social networks with the regulations of the NetzDG. Based on the published reports of social network providers, complaints by internet users and its own investigations, the FOJ officially launched 31 sets of fine proceedings against social network providers in August 2019.
In 17 cases, the social network provider has been asked to make a voluntary statement addressing the allegations that they breached the NetzDG. In 14 cases, the FOJ is still considering whether to take further steps.
Taylor Wessing's team in Hamburg is advising in three ongoing fine proceedings initiated against our clients. In our experience, the FOJ is basing its investigations on small inconsistencies in the transparency reports. It also seems to be using fine proceedings to try and clarify the vague wording of the NetzDG.
In July 2019, the FOJ announced that it had fined Facebook EUR 2m, the first fine based on breach of section 4 of the NetzDG. The Office argued that – compared to other large social networks – Facebook disclosed an unrealistically small number of complaints in its transparency report. The FOJ said Facebook had not set out complaints in compliance with the NetzDG. Facebook is appealing the fine.
The transparency reports show that the majority of complaints about unlawful content result in content being taken down. This, together with the tough stance on enforcement, is taken by some to suggest that the NetzDG is working.
But it's also possible that social network providers tend to delete content which is the subject of a complaint, whether or not it is actually unlawful, just to be on the safe side. They are unwilling to risk enforcement action and reputational damage if the content stays online.
We have also noticed a growing number of users who simply put their deleted content back online, claiming that the content was not unlawful in the first place. This raises the question: how much freedom does the social network provider have to create terms and conditions for the use of the social network?
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