Auteurs

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

Associé

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Alexander Schmalenberger, LL.B.

Knowledge Lawyer

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Dr. Thorsten Troge

Associé

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Nathalie Koch, LL.M. (UC Hastings)

Collaborateur senior

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Auteurs

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

Associé

Read More

Alexander Schmalenberger, LL.B.

Knowledge Lawyer

Read More

Dr. Thorsten Troge

Associé

Read More

Nathalie Koch, LL.M. (UC Hastings)

Collaborateur senior

Read More

14 mai 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 The previous provisions of the TMG on responsibility are largely no longer applicable and are now covered by Art. 4 et seq.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.

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19 September 2022

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19 September 2022

par Alexander Schmalenberger, LL.B.

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19 September 2022

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

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