DSA: Federal government's security package initiative without a plan

In real or perceived times of crisis, governments like to resort to legislation to demonstrate their ability to act. However, it is not just gun laws, but also digital legislation that is now being used to demonstrate their ability to work. And so, among all kinds of plans in the areas of residence, police and firearms law, there is also the announcement of an initiative to amend the EU's Digital Services Act (DSA), which has only just come into force.

In the package of measures following the attack in Solingen, which was claimed by the so-called Islamic State, the German government urged the EU to tighten up the DSA, which has only been in force for a year. The amendments were intended to name "specific criminal offences", such as the "dissemination of propaganda material of unconstitutional and terrorist organizations and incitement to hatred", according to the paper adopted by the coalition. In this way, the coalition wants to consistently combat criminal content on online platforms.

However, there is no EU-wide criminal law with harmonized offences. Instead, the states agree in framework resolutions to have similar legal norms in criminal law. However, the German standard on incitement to hatred in particular, as amended in 2023, is unknown in many EU states and goes beyond the common EU framework.

Furthermore, the German government has apparently not coordinated its proposal with the Council of Member States, the EU Commission or the members of the European Parliament from its own parties. A spokesperson for the EU Commission pointed out to heise online that the DSA already regulates illegal content under national law and obliges platforms to have such content flagged by users and then act quickly. The final regulation of the DSA also rules out any deviating national regulations.

Eine Analyse von Falk Steiner

Falk Steiner ist Journalist in Berlin. Er ist als Autor für heise online, Tageszeitungen, Fachnewsletter sowie Magazine tätig und berichtet unter anderem über die Digitalpolitik im Bund und der EU.

Federal government still not quite sure

The German government itself is not yet in a position to clearly describe what exactly it means by its proposal. A spokesperson for the Federal Ministry of Justice (BMJ) told heise online that an initiative for full European harmonization of criminal law is currently out of the question. The ministry, headed by FDP politician Marco Buschmann, is responsible for criminal law. However, without clearly outlined European criminal offenses, the DSA cannot name a conclusive catalog of specific criminal offenses like the former German Netzwerkdurchsetzungsgesetz. The debate on this was conducted intensively during the DSA negotiations – with the current legal situation as a result. National criminal offenses of the 27 member states are therefore the reference point, but they must be compatible with EU law.

However, the German government now claims to have meant something completely different. "Rather, the Federal Government will work in close coordination with European partners at EU level to extend the reporting obligation for hosting service providers provided for in the Digital Services Act," explained the BMJ spokesperson at the request of heise online. Article 18 of the DSA stipulates that hosting services must immediately inform a competent authority – in Germany the BKA – if there is a suspicion of a criminal offense against the life, limb or freedom of a person. For the police authorities, this is actually not enough: they would like to see more reporting obligations for providers. However, the Federal Ministry of Justice says that it is still too early in the process for more precise answers.

Ampel MEPs surprised

The project does not even appear to have been discussed with DSA-competent MEPs from their own party families. In any case, Green MEP Alexandra Geese sees no reason for the German government to rush ahead: "The DSA already offers the relevant authorities specific options for prosecuting criminal content on online platforms. These should be actively used." The DSA can also be used to influence the design of targeting and algorithms. "It is these mechanisms that make the internet such a powerful platform for extremist or terrorist organizations." A change to the DSA would be legally problematic due to the lack of a legal basis for the inclusion of criminal offenses – and changes to the law would take a long time, explained Geese when asked by heise online.

SPD MEP Tiemo Wölken is also irritated: "There has already been a regulation on the dissemination of terrorist content online at European level since 2021, which deals specifically with this very issue and sets deadlines of one hour for platforms to remove terrorist content." The Terrorist Content Online Ordinance (TCO-VO) is one of the sharpest swords used by law enforcement authorities: Police authorities such as the Federal Criminal Police Office use the instrument for notifications to the platforms – but may also issue removal orders. Even Telegram, which otherwise does not always cooperate with the authorities as they would like, fully complies with these orders. For Tiemo Wölken, a possible starting point would not be the DSA, but the older TCO: "If the German government sees a need for change beyond these regulations, a reform of this regulation would be the right starting point instead of opening up the Digital Services Act, which has only just come into force, and thus creating legal uncertainty before the law has even been fully implemented and the responsible authorities are properly equipped."

(mma)