Digital Services Act in Germany: major law with teething problems

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For almost a year now, the Digital Services Act has also applied to smaller online providers. In some cases, European requirements are still lacking, in other providers are clashing with the EU Commission. However, if you only look at the purely German situation, little has happened with the DSA so far apart from a lot of political wrangling.

The Federal Network Agency (BNetzA), which is responsible for enforcing digital services in Germany, has received 850 complaints so far since taking up its duties in May 2024. This was announced by the Bonn-based supervisory authority at the request of heise online. “The main issues are the user-friendliness of the reporting channels for illegal content, insufficient justification for decisions on removal and non-removal as well as restrictions on accounts, content and services,” explained a spokesperson for the authority.

The Federal Network Agency is currently pursuing requests for information against three platform operators, the preliminary stage of formal proceedings, which may also result in fines. One of the providers had not appointed a legal representative in the EU, which is mandatory under the DSA.

A comprehensive answer to a question from the CDU/CSU parliamentary group in the German Bundestag, which has now been published, also reveals how the DSA supervisory authority, which was previously understaffed, has acted to date. By December, the supervisory authority had received five applications for out-of-court arbitration boards and 22 applications for trusted flagger status. Reports from institutions with this status must be processed by the operators on a prioritized basis.

The German government rejects criticism of the first body recognized by the Federal Network Agency as a trusted flagger: The DSA requires that these “must be independent of any providers of online platforms”. Funding, for example through state financial support, does not contradict the status as defined by the law. Last year, the first recognized Trusted Flagger was met with a largely unjustified storm of indignation.

Online marketplaces and DSA: Federal government sees need for action

In connection with the DSA, the German government sees a need for further action regarding online marketplaces. These are also subject to specific regulations under the DSA. It is currently working on a “comprehensive action plan on e-commerce", it stated in its response to the Union parliamentary group's question. In particular, the activities of the market surveillance authorities, which are supposed to carry out checks on imports of goods for compliance with EU regulations such as product safety and health protection, should focus more strongly on online trade. Cooperation between customs authorities and market surveillance authorities should also be further improved; a customs reform in the EU is currently being negotiated in Brussels.

The digital product passport could play a key role in improving the enforcement of product safety regulations: If this is available, it could also make the work of market surveillance authorities much easier when it comes to product testing.

Notifiable offenses: Hardly any real reporting volume

Another aspect of the Digital Services Act is the reporting of suspected certain criminal offenses that are directed against the life, limb, or freedom of people. In this case, operators must actively notify the competent authorities as soon as they become aware of it – In Germany, this is the Federal Criminal Police Office under the Digital Services Act. A statistic included in the German government's response to the CDU/CSU parliamentary group's question reveals astonishing figures: most of these reports to the BKA did not come from TikTok, Telegram, Instagram, Facebook or X – but were submitted by the web chat provider Deutscher-Chat.de, followed by Knuddels and the hosting provider Hetzner.

This part of the DSA system therefore does not yet appear to be working particularly well – as the figures are not very plausible. Nevertheless, in the first evaluation of the DSA, the German government wants to push for “the reporting obligation to be extended to certain specific criminal offences such as the dissemination of propaganda material of unconstitutional and terrorist organizations and incitement to hatred at EU level.” However, there are no uniform EU-wide definitions and criminal offenses for this.

DSC management is now to be filled

Almost a year after it came into force for all providers in Germany, the Digital Services Act is only slowly warming up – The “Basic Law for the Internet” is still having little effect. However, providers should not rely on this remaining the case: With the new year, the Federal Network Agency has now made more positions available for enforcement – The application process for the head of the independent Digital Services Coordinator is currently underway. Until now, the head of the Federal Network Agency, Klaus Müller, has performed this task on a temporary basis alongside a wide range of other activities.

(olb)