Facebook and the NetzDG

The Münster Higher Administrative Court recently ruled in an urgent decision that the obligation to provide a counter-appeal procedure provided for in Section 3 b of the Act to Improve Legal Enforcement in Social Networks (Network Enforcement Act – NetzDG) is partially inapplicable to social network providers based in other EU member states. The court’s decision was partially amended with regard to the obligation to hold a countermotion regarding the deletion or blocking of content relevant under criminal law in the case of NetzDG complaints.

Key Facts

The Münster Higher Administrative Court ruled that the obligation to submit a counter-proposal does not apply in part to providers in other EU Member States.
The applicant, a company of the Meta Group, wanted to establish that it does not fall under Section 3a and Section 3b NetzDG.
The court emphasized that the obligation to provide for a counter-provision procedure could violate the country of origin principle of the E-Commerce Directive.
A deviation from the country of origin principle is only permissible under certain conditions, which are not met in the present case.
The decision is of great importance for the enforcement of the NetzDG and the regulation of social networks in Germany.
It remains uncertain whether the decision will have an impact on other EU member states and whether adjustments to the NetzDG will be necessary.
The decision could harmonize the regulation of social networks at European level and requires a balance to be struck between freedom of expression and protection against hate speech.

The applicant, a company of the Meta Group, had sought a preliminary determination by way of urgent legal protection against the Federal Republic of Germany that it was not subject to the obligations under § 3 a and § 3 b of the NetzDG. The Cologne Administrative Court had granted the emergency application with regard to the obligations under Section 3 a of the NetzDG, but rejected the emergency application with regard to the countermotion. The applicant had then filed an appeal.

The Higher Administrative Court has ruled that the application of the obligation to provide an effective and transparent cross-appeal procedure to social network providers who, like the applicant, are based in another Member State of the European Union is likely to violate the country of origin principle enshrined in the Directive on Electronic Commerce (E-Commerce Directive). The country of origin principle stipulates that information society services, which also include social networks, are in principle only subject to the law of the Member State in which the provider is established (in this case, Ireland). A deviation from the country of origin principle would only be permissible under certain conditions, which were not met in this case.

The court also ruled that the urgent application is inadmissible with regard to the obligation to hold a countermotion regarding the deletion or blocking of other content (Section 3 b (3) of the NetzDG), as this obligation is not subject to a fine. The applicant may defend itself against any measures taken by the competent supervisory authority by way of retrospective legal protection.

The decision of the Higher Administrative Court has great significance for the enforcement of the NetzDG in Germany and the regulation of social networks. It remains to be seen whether the court’s decision will have an impact on other EU member states and whether the NetzDG may have to be adapted to comply with the country of origin principle of the E-Commerce Directive. The court’s decision also shows that the regulation of social networks in an international context is complex and that a careful balance must be struck between protecting freedom of expression and protecting against hate speech and other illegal content.

It remains to be seen how the legal situation in Germany and other EU member states will develop with regard to the regulation of social networks. The decision of the Higher Administrative Court could be a first step toward harmonizing the regulation of social networks at the European level.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.