The issue of liability for user-generated content poses significant legal challenges for operators of online platforms, including game providers, SaaS companies and app developers. With the entry into force of the Digital Services Act (DSA) at EU level and the German Digital Services Act (DDG), the legal basis for these liability issues has changed fundamentally. The previously applicable provisions of the German Telemedia Act (TMG) have been replaced by the new regulations, which place specific requirements on platform operators. Of particular relevance here are the liability privileges for hosting services, which apply under certain conditions. However, these privileges only apply if the operator has no actual knowledge of illegal content or takes immediate action to remove this content or block access to it after becoming aware of it. A general monitoring obligation is expressly excluded, which gives platform operators certain freedoms in the organization of their services. Nevertheless, the question remains open as to the cases in which knowledge is actually obtained and which measures are considered “immediate”. The new regulations aim to create uniform standards within the EU while ensuring adequate protection for rights holders and data subjects. Operators must therefore not only implement technical solutions for content moderation, but also establish legal processes in order to meet the requirements. Additional challenges arise for app operators and SaaS providers, as they often act as intermediaries between users and content and may therefore have special duties of care.
Occurrence of liability
The liability of platform operators for user-generated content in apps, on SaaS platforms, in forums and in computer games is a key issue in the current legal framework. With the entry into force of the Digital Services Act (DSA) and the German Digital Services Act (DDG), the requirements for operators of digital services have changed considerably. These regulations oblige providers to take active action against illegal content created by users. Hosting providers are only liable for illegal content if they are aware of this content and do not act immediately after being notified. This means that platform operators initially have no general monitoring obligation, but must take action if there are specific indications of illegal content. The key question here is when an operator is deemed to have been informed. The type of notification plays a key role here; clear and precise notifications are necessary to enable a timely response. Another key point is the definition of the term “immediately”. This is often interpreted as “without undue delay”, which means that operators must act quickly as soon as they are made aware of illegal content. Failure to respond within a reasonable timeframe can lead to liability claims. Operators should therefore establish internal processes to efficiently handle incoming notices and ensure that problematic content is quickly removed or blocked. Furthermore, operators can be held liable if they play an active role in the presentation or promotion of illegal content. This can be done, for example, through algorithmic recommendations or targeted placement of such content. Such an active role differs fundamentally from the passive role of a host provider and can have significant legal consequences. For app operators in particular, it is important to note that they can also be liable for content that is distributed via their platform, even if they did not create it themselves. SaaS providers need to be particularly vigilant if their services could be misused to distribute illegal content. In both cases, it is crucial to implement effective mechanisms to detect and remove problematic content. This includes both technical solutions such as content filters and clear guidelines for users to ensure that all content complies with applicable legal requirements.
Audit obligations and recommendations for action
In order to effectively minimize liability risks, platform operators must take proactive measures and adapt their internal processes accordingly. One key requirement is the implementation of an effective notice-and-action system. This system should ensure that reports of illegal content can be processed quickly and that the content in question is removed or blocked if necessary. It is important that the procedure is transparent and that both the whistleblower and the affected user are informed of the measures taken. In addition to this reactive approach, platform operators should also take proactive measures to identify and prevent potentially illegal content at an early stage. Technologies such as content filters or AI-based detection systems can be used for this purpose, although care must always be taken to ensure that these measures are compatible with data protection requirements and the limits of general monitoring obligations. In addition, clear terms of use should be formulated that clearly define prohibited content and specify sanctions in the event of violations. These conditions should be regularly reviewed and adapted to new legal developments. Another important measure is the training of staff with regard to legal requirements and internal processes for content moderation. This is the only way to ensure that reports of illegal content are processed correctly and that no unnecessary liability risks arise. It is also advisable for app operators to implement mechanisms for checking user-generated content before it is published. SaaS providers should consider implementing automated systems to detect potentially problematic uses of their services. Both groups should also establish and enforce clear guidelines for the use of their services in order to minimize the risk of illegal content. In the context of “Stoererhaftung”, it is essential for platform operators to carefully fulfill their monitoring obligations. Breach of contract liability applies if the operator has violated reasonable monitoring obligations. This means that after becoming aware of an infringement, not only must the specific content be removed, but measures must also be taken to prevent similar infringements in the future. A case-by-case assessment is necessary to determine which measures are considered reasonable. Factors such as the type of service, the technical possibilities and the economic burden on the operator play a role here. From a criminal law perspective, platform operators can be held responsible for the content published on their platform under certain circumstances. This is particularly the case if they adopt the content as their own or do not take action despite being aware of criminal content. In order to minimize criminal law risks, operators should establish an effective compliance management system that ensures compliance with legal regulations. This also includes the implementation of processes for reacting quickly to information about criminal content and the regular training of employees with regard to criminal risks in the digital space.
Platform operators should also pay particular attention to the prevention of criminal acts that could be prepared or committed via their services. This applies, for example, to the distribution of child pornography, terrorist propaganda or the planning of criminal acts in chat forums. Here, operators are required to work closely with law enforcement authorities and, if necessary, to implement specific monitoring mechanisms, insofar as this is legally permissible and technically possible. The balancing act between effective content moderation and the protection of freedom of expression and user privacy remains a key challenge. Platform operators must therefore continuously review and adapt their processes and guidelines in order to both comply with legal requirements and respect the rights of their users. Transparent communication about the measures taken can help to strengthen user trust and avoid potential legal disputes.
Legal protection through general terms and conditions
The general terms and conditions (GTC) of a platform operator are crucial for minimizing legal risks and protecting against claims by third parties and their own users. Precisely worded clauses allow operators to strengthen their rights and clearly define their obligations, in particular the obligation of users to comply with applicable laws and to refrain from illegal activities such as insults or copyright infringements. For app operators, SaaS providers and operators of forums or computer games with user-generated content, it is important to establish clear usage guidelines that specify in detail what content is permitted and what is not. These include bans on hate speech, depictions of violence, pornographic content, advertising and the distribution of malware. The terms and conditions should also define processes for reporting problematic content by users and explain how the operator deals with such reports. This can strengthen user trust and increase the efficiency of the moderation process. Exemption clauses are another important part of the T&Cs. They should be formulated in such a way that they can protect the operator from third-party claims in the event of legal violations by users. Such clauses enable the operator, for example, to pass on claims for damages directly to the responsible user or to assert recourse claims. However, it is important that these clauses are formulated in a fair and balanced manner to ensure their enforceability. The T&Cs should also provide for a graduated system of sanctions for breaches of the terms of use. This can include warnings, temporary suspensions or permanent account closures. It is important that the criteria for applying these sanctions are transparent and comprehensible. It is also advisable for app operators and SaaS providers to reserve the right in their terms and conditions to restrict or terminate access to their services in the event of breaches of the usage guidelines. This gives them the necessary flexibility to react quickly to misuse. Another important clause concerns the operator’s right to remove illegal or suspicious content without prior notice. This is particularly relevant for platforms with user-generated content, as it enables a quick response to problematic posts. In the context of computer games, the T&Cs should also contain provisions on the use and ownership of user-generated content. These provisions can grant the operator the right to use user-generated content for advertising purposes or for the further development of the game. However, it should be noted that T&Cs alone cannot provide complete legal protection. In certain cases, they can be declared invalid by courts, especially if they are considered to be unreasonably disadvantageous for the user. It is therefore important that T&Cs are regularly reviewed by legal experts and adapted to current legal developments. Operators should also bear in mind that the enforceability of GTC clauses may vary from country to country.
In the case of internationally operating platforms, it is therefore advisable to adapt the T&Cs to the respective national legal systems or at least point out possible restrictions in certain jurisdictions. Finally, it is important that the T&Cs are formulated clearly and comprehensibly. Complex legal wording should be avoided to ensure that users can actually understand and accept the terms. This can not only improve legal enforceability, but also increase user confidence in the platform. Although T&Cs are an important tool for minimizing risk, their effectiveness in limiting liability is legally limited. Platform operators can limit their liability towards users to a certain extent through GTCs, but cannot exclude it completely; in particular, a limitation of liability is generally ineffective in cases of intent and gross negligence. A limitation of liability is also only possible to a limited extent in the event of a breach of material contractual obligations. Furthermore, GTCs cannot effectively exclude liability towards third parties, which is particularly relevant in the case of copyright infringements by users. Nevertheless, well-formulated T&Cs can help to reduce the liability risk, establish clear rules of conduct and define the consequences of breaches. It is particularly important for app operators and SaaS providers to clearly communicate that they are not responsible for the content or behavior of their users, insofar as this is legally permissible; at the same time, they should reserve the right to take appropriate measures in the event of legal violations. A regular review of the T&Cs by legal experts is advisable to ensure that they comply with current legal requirements and offer the best possible protection for the operator.
Digression: Do AI providers have to prevent AI products from being traded illegally?
The question of whether artificial intelligence (AI) providers are responsible for preventing unlawful use of the content generated by their AI is highly complex in legal and practical terms. In principle, AI providers are not automatically liable for the actions of the users of their systems, as these are generally considered to be independent actors. Nevertheless, providers can be held liable in certain constellations, especially if they have not taken sufficient precautions to prevent improper or illegal use. This applies in particular to cases in which the AI models are designed in such a way that they can deliberately generate content that violates applicable law, such as copyright-infringing works or discriminatory statements. A central aspect is the question of the providers’ so-called “duty of care”. Among other things, this includes the obligation to implement suitable technical and organizational measures to minimize illegal use of their systems. This includes mechanisms such as filters to detect problematic prompts or outputs as well as warnings for users about potentially critical content. Providers could also be obliged to train their models in such a way that certain illegal content cannot be generated in the first place. However, this poses the challenge of finding a balance between avoiding legal violations and safeguarding freedom of expression and the creative uses of AI. A provider may also be liable if it “appropriates” the content generated by the AI. This would be the case, for example, if a provider actively advertises its AI results or publishes them on its platform without further verification. In such cases, there could be direct responsibility for illegal content. A well-known example of this is the liability of platform operators for false information generated and published by AI systems. In such cases, courts have ruled that operators remain responsible for the quality and accuracy of the content provided. Another relevant point is the so-called “design of the system”. If an AI model is deliberately designed in such a way that it can also generate potentially illegal content without restrictions, this could be considered negligent behavior on the part of the provider. The planned EU AI Regulation (AI Act) also plays a role here, which stipulates strict requirements for transparency and safety precautions, particularly for high-risk AI systems. For other systems, however, it remains largely unclear what specific obligations providers have. There is also the question of monitoring obligations. There is no general obligation to monitor all uses of an AI, as this would be both technically almost impossible to implement and legally problematic. Nevertheless, providers could be obliged to take action in the event of concrete indications of misuse and to take appropriate measures – comparable to the obligations of platform operators under the Digital Services Act.
Data protection aspects also play a role: if personal data is processed by AI-generated content and this data could be misused, providers must ensure that their systems comply with the requirements of the General Data Protection Regulation (GDPR). This also includes protection against discrimination or unlawful profiling by AI-generated content. Ultimately, it should be noted that although providers cannot be held liable for every unlawful act by their users, they have a considerable responsibility to make their systems as secure as possible. The development of clear usage guidelines and technical protective measures is therefore essential. At the same time, providers should make it clear in their general terms and conditions that they cannot accept any liability for the use of their systems by third parties – insofar as this is legally permissible. Nevertheless, the topic remains a dynamic field: with increasing regulation in the field of artificial intelligence, it is expected that the requirements for providers will become more specific and stricter.
Excursus: Monitoring obligations for game providers and app developers
The question of whether game providers and app developers are obliged to monitor chats in their applications in order to prevent the commission of crimes poses a complex legal and ethical challenge. In principle, digital service providers share responsibility for the security of their platforms, but this must be carefully balanced against the protection of privacy and the right to confidential communication. The legal situation in this area is currently in flux. Current legislative initiatives at EU level aim to impose controls on encrypted and unencrypted chats by service providers. This would potentially affect a wide range of communication channels in the gaming industry, from public team chats in e-sports titles to server or guild chats in MMOs and private chats between users on platforms such as Steam or the Xbox network. This poses several significant challenges for game providers and app developers: 1. The technical implementation of effective monitoring systems is complex and resource-intensive.
2. Comprehensive chat monitoring could violate applicable data protection laws and permanently damage user trust.
3Automated systems carry the risk of falsely classifying harmless conversations as suspicious.
4. With end-to-end encrypted chats, monitoring is technically hardly feasible without compromising the security of the communication.
5. The different legal requirements in different jurisdictions make a uniform global approach difficult. From a data protection perspective, in particular with regard to the General Data Protection Regulation (GDPR), users must be informed about any monitoring functions and have the option of deactivating them unless they are required by law. Any collection and processing of personal data must be limited to what is absolutely necessary and must be transparent. In light of these challenges, providers could pursue alternative approaches to create a secure environment without disproportionately restricting the privacy of all users.
These include:
– The implementation of reporting systems for suspicious activities
– The use of AI-supported systems to recognize patterns that could indicate criminal activity
– The promotion and training of community moderators
– The development of clear usage guidelines and terms and conditions, that explicitly prohibit illegal activities
– Targeted cooperation with law enforcement authorities in specific cases of suspicion
– Comprehensive education of users about safe behavior in digital environments It is evident that complete monitoring of all chats would not only be legally questionable, but also impractical. Instead, providers should pursue a balanced approach that takes equal account of security aspects and the protection of privacy. The debate about the responsibility of platform operators will continue to intensify as technological developments progress. It is to be expected that future laws and regulations will address this complex issue and define more specific requirements for monitoring obligations and data protection standards. Until then, game providers and app developers remain responsible for proactively developing solutions that guarantee both the protection of their users and their right to privacy.
Conclusion: Legally compliant platforms through proactive action
As a lawyer and consultant for IT law, media law and contract law, I would like to conclude by emphasizing the importance of a proactive approach to the design and operation of online platforms. The liability risks for platform operators, app providers and SaaS companies are complex, but can be managed through prudent action.
The implementation of effective notice-and-action systems and clear internal processes for the rapid processing of reports of illegal content is key. In addition, technical solutions should be used to proactively identify problematic content without falling into a general monitoring obligation.
Carefully formulated terms of use and general terms and conditions are essential in order to clearly define rights and obligations and secure recourse claims against users. The appropriateness and legal enforceability of the clauses must always be ensured.
As an experienced consultant, I recommend that my clients regularly review their compliance strategies and adapt them to the constantly evolving legal situation. A holistic approach that combines legal expertise with technical understanding and entrepreneurial thinking is the key to success in the digital economy.
Ultimately, it’s about finding a balance between promoting innovation and user-friendliness on the one hand and complying with legal requirements on the other. With the right strategy, platform operators can not only minimize liability risks, but also strengthen the trust of their users and stand out from the competition.
