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Federal Ministry of Justice and Consumer Protection

Proposed amendment

to the draft Act of the Federal Government

– Parliamentary document […] –

[…]

The Bundestag is to decide:

whether to adopt the draft Act in Parliamentary document […] with the following provisos but otherwise unchanged:

The following Article ... is inserted after Article ...:

‘Article […]*)
- 14 - Last updated: 17 June 2021 15:26

Version: 17 June 2021 15:26

Act amending the Network Enforcement Act,

Dated 03 June 2021

The Bundestag has adopted the following Act

Article 1

Amendment to the Network Enforcement Act

The Network Enforcement Act of 1 September 2017 (Federal Law Gazette (BGBl.) I p. 3352), last amended by … [Article 1 of the draft Act amending the Network Enforcement Act, Bundestag document 19/18792], is amended as follows:

In § 1(2), the reference ‘§§ 2 and 3b’ is replaced by the words ‘§§ 2 to 3b and 5a’.

In § 2(2)(2), the words ‘and to that end have been given access to information held by the provider’ are inserted after the words ‘are assisted’.
The Network Enforcement Act of 1 September 2017 (Federal Law Gazette I p. 3352), last amended by Article 7 of the Act of 30 March 2021 (Federal Law Gazette I p. 441), as further amended by Article 15 of the Act of 30 March 2021 (Federal Law Gazette I p. 448), is amended as follows:

In § 1(2), the reference ‘§§ 2 and 3’ is replaced by the reference ‘§§ 2 to 3b and 5a’.

§ 2(2) is amended as follows:

Point 2 is replaced by the following points 2 and 3:

‘2. The nature, broad outlines of the functioning and scope of any methods used for the automated detection of content to be removed or blocked, including general information on the training data used and the verification by the provider of the results of those procedures, as well as information on the extent to which scientific and research circles are supported in the evaluation of those procedures and have been granted access to information provided by the provider for that purpose,

3. Description of the mechanisms for the transmission of complaints about unlawful content, description of the decision criteria for the removal and blocking of unlawful content and description of the review procedure, including the sequence of the review as to whether unlawful content is at hand or whether contractual provisions between provider and user are being violated,’.

The previous points 3 to 6 become points 4 to 7.

The previous point 7 becomes point 8 and the words ‘according to the total number as well as’ are inserted after the word ‘led,’ and a comma and the words ‘which step in the test sequence pursuant to point 3 led to the removal or blocking’ are inserted after the words‘ users took place’.

The previous point 8 becomes point 9 and is worded as follows:

‘9. the respective number of complaints about unlawful content that resulted in the removal or blocking of the unlawful content within 24 hours, within 48

hours or within a week of receipt, or at a later time, additionally broken down by complaints from complaints offices and users as well as broken down according to the reason for the complaint,’.

The previous point 9 becomes point 10 and the full stop at the end is replaced by a comma.

The following points 11 and 17 are added:

‘11. Number of appeals received in the reporting period as per § 3b(1) sentence 2, according to the total number and broken down according to appeals by complainants and users for whom the contested content was saved, each with details on the number of cases in which the appeal was remedied,

12. Number of appeals received in the reporting period as per § 3b(3) sentence 1, each with details on the number of cases in which a review as per § 3b(3) sentence 3 was dispensed with and on the number of cases in which the appeal was remedied,

13. Information on whether and to what extent scientific and research groups were granted access to information from the provider in the reporting period in order to enable it to be anonymously evaluated as to whether

removed or blocked illegal content relate to characteristics as referred to in § 1 of the General Equal Treatment Act of 14 August 2006 (Federal Law Gazette I p. 1897), last amended by Article 8 of the Act of 3 April 2013 (Federal Law Gazette I p. 610), in its current version,

whether the dissemination of unlawful content impacts certain user groups in specific ways, and

whether organised structures or coordinated behaviours form the basis of the dissemination,

14. other measures by the provider to protect and support those impacted by unlawful content,

15. a summary with a tabular overview showing the total number of complaints received about unlawful content, the percentage of content removed or blocked in response to these complaints, the number of appeals pursuant to § 3b(1) sentence 2 and § 3b(3) sentence 1 respectively, and the percentage of decisions changed based on these appeals compared with the corresponding numbers for the two previous reporting periods, together with an explanation of significant differences and possible reasons for them,

16. Explanation of the provisions in the provider’s general terms and conditions on the permissibility of disseminating content on the social network used by the provider for contracts with consumers,

17. Presentation of the extent to which the agreement on the provisions under paragraph 16 is consistent with the requirements of §§ 307 to 309 of the Civil Code and other legislation.’

§ 3 is amended as follows:

In paragraph 1 sentence 2, the words “when perceiving the content” are inserted after the word “a” and a comma and the words “easy to use” are inserted after the word “reachable”.

Paragraph 2 is amended as follows:

In point 3(b) the words ‘the social network’ are replaced by the words ‘the social network provider’.

Points 4 and 5 are worded as follows:

‘4. in the event of removal, secures the content for evidence and for this purpose saves it for a period of ten weeks within the scope of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce) (OJ L 178, 17.7.2000, p. 1) and Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1; L 263, 6.10.2010, p. 15) as amended by Directive (EU) 2018/1808 (OJ L 303, 28.11.2018, p. 69),

5. informs the complainant and the user for whom the contested content was stored about each decision without delay, and in doing so

justifies its decision,

indicates the possibility of an appeal as per § 3b(1) sentence 2, the procedure provided for this as per § 3b(1) sentence 3, the deadline as per § 3b(1) sentence 2 and that the content of the appeal can be passed on within the scope of the procedure as per § 3b(2)(1), and

informs the complainant that they can file a notice of an offence and, if necessary, an application for prosecution against the user for whom the contested content has been saved, and about the website on which they can receive further information about this.’

The following sentences are added:

‘In the cases of sentence 1(3)(b), the social network provider may disclose the contested content, information on the time of sharing or making the content accessible and the extent of its dissemination, as well as the content in a recognisable context (if necessary for the purpose of the decision) to the recognised self-regulation body. The self-regulation body is authorised to process the personal data concerned to the extent necessary for the review. Any inaccuracy of the decision taken by the self-regulation body in the cases of sentence 1(3)(b) does not constitute a violation of paragraph 1(1) by the social network provider.’

Paragraph 6 is amended as follows:

In point 3, the word ‘provides,’ is replaced by the words ‘provides at the request of the complainant and at the request of the user for whom the contested content has been saved, and’.

Point 4 is repealed.

Point 5 becomes point 4.

The following sentences are added to paragraph 7:

‘It shall give the central supervisory authority of the Federal States for the protection of minors from harmful media the opportunity to comment before the decision on recognition. The decision can be issued with additional conditions. A time limit should not be less than five years.’

The following paragraphs (8) and (9) shall be inserted after paragraph (7):

‘(8) The recognised self-regulation body must immediately inform the administrative authority mentioned in § 4 of changes in the circumstances relevant to the recognition and other information provided in the application for recognition.

(9) The recognised self-regulation body must publish an activity report on the previous calendar year on its website by 31 July of each year and forward it to the administrative authority mentioned in § 4.’

The previous paragraphs 8 and 9 become the new paragraphs 10 and 11.

§ 3a is amended as follows:

Paragraph 4 is worded as follows:

‘(4) The transmission to the Federal Criminal Police Office must include:

the content and, if available, the time at which the content was shared or made available to the public, indicating the underlying time zone,

the following information about the user who shared the content with other users or made it available to the public:

the user name and,

if available, the last IP address used in relation to the social network provider, including the port number and the time of the last access, indicating the underlying time zone.’

The following paragraph 8 is added:

‘(8) Law enforcement authorities may, for the purposes of a general discussion with social networking providers on the application of paragraphs 1 to 7, process the personal data necessary for that purpose in a pseudonymised form.’

The following sections 3b to 3f are inserted before § 4:

Ԥ 3b

Appeal procedure

The provider of a social network shall maintain an effective and transparent procedure in accordance with paragraph 2, allowing both the complainant and the user for whom the content complained of has been saved to review a decision to remove or block access to a content (original decision) taken in response to a complaint about illegal content; an exception applies in the cases of § 3(2) sentence 1 point 3(b).The review is only required if the complainant or the user for whom the contested content has been stored submits a request for review, stating the reasons, within two weeks of the information on the original decision (appeal). For this purpose, the social network provider must provide an easily recognisable procedure that enables easy electronic

contact and direct communication with it. The means of contact must also be addressed in the information as per § 3(2)(1)(5)(b).

The procedure as per paragraph 1, sentence 1 shall ensure that the social network provider,

in the event that it wishes to remedy the appeal, immediately informs the user of the content of the appeal in the case of an appeal by the complainant, immediately informs the complainant of the content of the appeal in the event of an appeal by the user, and provides the user in the first case and the complainant in the second with the opportunity to make a statement within a reasonable time,

points out that the content of a user’s statement can be passed on to the complainant and the content of a complainant's statement can be passed on to the user,

immediately subjects its original decision to a review by a person who was not involved with the original decision,

communicates its review decision to the complainant and the user without delay and gives reasons for it on a case-by-case basis, in cases of no action to the complainant and the user only to the extent that they have already been involved in the appeal procedure, and

ensures that the complainant’s and the user’s identities are not disclosed in the procedure.

Unless a decision to remove or disable access to content is based on a complaint about unlawful content, paragraphs 1 and 2 shall apply mutatis mutandis. If the decision is based on a complaint about the content by a third party, the person who transmitted the complaint to the provider of the social network shall take the place of the complainant. By way of derogation from paragraph 2(3), it shall not be necessary for the review to be carried out by a person not involved in the original decision. By way of derogation from paragraph 1, sentence 2, the review pursuant to sentence 1 shall not be required if the content is recognisably unwanted commercial communication or commercial communication that violates the provider’s general terms and conditions, which has been shared by the user with other users in a large number of cases or has been made accessible to the public and the appeal obviously has no prospect of success.

The right to pursue legal action remains unaffected.

§ 3c

Arbitration

The administrative authority referred to in § 4 can recognise organisations under private law as arbitration bodies for out-of-court settlement of disputes between complainants or users for whom the contested content has been saved and social network providers on decisions made in accordance with § 3(2) sentence 1(1) to (3).

An organisation under private law is to be recognised as an arbitration body as per paragraph 1 if

its sponsor is a legal person,

based in a Member State of the European Union or in another State party to the Agreement on the European Economic Area to which Directive 2010/13/EU applies,

which is intended to be permanent, and

the financing of which is assured,

the independence, impartiality and expertise of those who are to be involved in arbitration are guaranteed,

their proper equipment and the timely processing of arbitration procedures are ensured,

it has rules of arbitration that regulate the details of the arbitration procedure and its competence and that enables a simple, inexpensive, non-binding and fair arbitration procedure in which the social network provider, the complainant and the user for whom the contested content was saved can participate,

it is ensured that the public is continuously informed of the availability and competence of the arbitration body and of the course of the arbitration procedure, including the rules of arbitration.