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.

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.