Court: Users are not bound by official forms for DSA notifications

On August 25, the Berlin Court of Appeal issued an important ruling on the Digital Services Act (DSA) and the way in which users can report infringements on online platforms. The 10th Civil Senate, which is responsible for disputes over claims arising from media publications, thus clarifies that users do not have to use an electronic reporting form set up by a provider covered by the DSA. They can also use other communication channels to inform the operator of a potential infringement (case reference: 10 W 70/25).

In this case, a woman felt that her personal rights had been violated by content on an online platform. She demanded the removal of the content. However, she did not use the portal's reporting procedure but sent a letter to a lawyer. The Berlin II Regional Court initially rejected her application. It took the view that the platform could only reasonably obtain knowledge of the infringement by using the official form.

The Court of Appeal now disagreed with the lower court and overturned its decision. It worked out that the DSA does not stipulate an obligation for users to use a predefined reporting path. The content of a submission is decisive, not the transmission path. Article 16 DSA does oblige platform operators to set up a reporting procedure. However, this does not exclude other means of communication. A notification is also effective outside the established form as long as it is precise and sufficiently substantiated. It is necessary, for example, to provide contact details, the source and a good explanation.

Cologne-based lawyer Christian Solmecke believes that the announcement strengthens the legal protection of those affected. Users can continue to report potentially illegal content by email or via a legal representative as long as the basic requirements of Article 16 DSA are met. Platform operators must also respond to notifications received outside of the official form, provided they contain the necessary information. The electronic procedure nevertheless remains important, as only there does the legal presumption of knowledge according to the relevant legal standard apply. Those who want to be on the safe side should therefore use the form.

The Senate referred the case back to the Regional Court. The court must now examine whether the content in question was actually illegal. Only recently, in another case involving a restaurateur about a poor online review and a possible infringement of personal rights resulting from this. The Regional Court II also criticized the fact that the plaintiff had not complied with the reporting procedure under the DSA. In this case, however, the judges also ruled that rating restaurants online is now an "everyday phenomenon" and that most "reviews" of this kind are based on personal taste. The plaintiff therefore had to tolerate the dumping.