Germany

[DE] Parliamentary debate on law implementing Digital Services Act

IRIS 2024-2:1/25

Dr. Jörg Ukrow

Institute of European Media Law (EMR), Saarbrücken/Brussels

On 18 January 2024, the Bundestag (German federal parliament) debated the so-called Digitale-Dienste-Gesetz (Digital Services Law), which was tabled by the federal government to implement the Digital Services Act (DSA) at national level, for the first time. While the DSA, which will apply across the EU from 17 February 2024, regulates matters including due diligence obligations for online services in the battle against disinformation and hate speech on the Internet and their enforcement at EU level, the government bill, known as the DDG-E, lays down the relevant responsibilities in Germany.

The DDG-E begins by proposing the amendment of national legislation. Individual provisions of current national law which will largely disappear as a result of the harmonising effect of the DSA are incorporated into the DDG-E, partly amended and adapted to the concept of ‘digital services’. These include provisions of the Telemediengesetz (Telemedia Act – TMG) that implement EU directives such as the Audiovisual Media Services Directive (AVMSD) and the E-Commerce Directive.

The DDG-E also contains provisions required to implement the DSA. Under Article 12(1), for example, the authority responsible for the supervision of providers and enforcement of the DSA in Germany within the meaning of Article 49(1) DSA is, “subject to paragraphs 2 and 3”, the Bundesnetzagentur (Federal Network Agency). The Bundesnetzagentur will work closely with the supervisory authorities in Brussels and other EU member states. Article 12(2) DDG-E provides for an exception in the field of media supervision, stating that the Bundeszentrale für Kinder- und Jugendmedienschutz (Federal Office for the Protection of Children and Young People in the Media) is responsible for enforcing (1) the specific provisions of Article 14(3) DSA governing the general terms and conditions of intermediary services primarily directed at or predominantly used by minors, and (2) structural preventive measures under Article 28(1) DSA, “excluding measures taken under the Jugendmedienschutz-Staatsvertrag (State Treaty on the Protection of Minors in the Media) in the version of 14 December 2021”. Responsibility for the latter measures will be assumed by the bodies designated under the media law provisions of the Länder, i.e. the Landesmedienanstalten (state media authorities), which have delegated it to the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM).

The DDG-E also regulates the establishment, resourcing, independence and management of the digital services coordinating body to be created within the Bundesnetzagentur. The Bundesnetzagentur will therefore act as the Digital Services Coordinator under Article 49(2) DSA. Provision is also made for collaboration with various national authorities and the establishment of an advisory board for the Digital Services Coordinator.

The subsequent sections of the DDG-E set out the fines and penalties applicable for infringements of the DSA, as well as powers and procedures under the DSA. The government bill emphasises that “the scope for sanctions provided under the DSA for breaches of the DSA is fully covered by this bill” and stipulates that platform operators can be fined up to 6% of their annual turnover.