Germany’s platform regulator under construction: Background discussion with Andrea Sanders-Winter (BNetzA, Germany’s Federal Network Agency)

Background Discussion

Germany is implementing the EU’s Digital Services Act and will therefore have to establish a national oversight regime for online platforms. According to a bill proposed at the beginning of August, it will be located at the “Bundesnetzagentur” (BNetzA), the Federal Network Agency.

How can this Digital Services Coordinator (DSC) at the BNetzA support the interests and enforce the rights of consumers vis-à-vis online platforms? What is needed to ensure a good exchange between this new administrative unit and other regulators? Are the envisioned networks with research and civil society sufficient and how can technical expertise be built up beyond that? On September 6th, 2023, SNV project director Julian Jaursch spoke to Andrea Sanders-Winter about these and other questions. As head of the sub-department for internet and digitization issues at the BNetzA, she has followed the establishment of the German DSC and is in close exchange with other member states that are currently planning their own supervisory authorities.

Below you will find the video and the transcript of the interview. The transcript has been slightly edited for readability.

- Start of the transcript -

Dr. Julian Jaursch, project director at SNV: A warm welcome to you all to this SNV background talk. Thank you very much for joining us. Today, we are talking about the Digital Services Coordinator, the DSC. It is supposed to ensure compliance with the Digital Services Act, the DSA. I suspect that most of you are already familiar with these abbreviations, but I would still like to provide a very brief overview of how we got to today’s point, that is, with the DSA in force and with the focus now on enforcement.

The DSA is the EU regulatory framework for online platforms. The stated aim is to create a “safe and transparent online environment”. The goal is to have EU-wide rules that protect consumers and do not leave the design of the platforms solely to the companies themselves, for example, regarding complaint mechanisms, the transparency of advertising, the explanation of algorithmic recommendation systems. A set of basic rules applies to all platforms. Very large online platforms have to comply with special additional rules. The European Commission is responsible for these additional special rules for the large platforms to ensure that they are complied with. For the “not-very-large” online platforms, the member states, where the platforms are based, are mainly responsible.

The member states can appoint several authorities to be responsible for these supervisory tasks, but there can only be one Digital Services Coordinator per member state. This coordinator must coordinate the national authorities, it must also cooperate with other DSCs in the EU and it has to fulfill supervisory tasks. This includes, for example, penalizing infringements by platforms, acting as a central complaints hub for consumers and examining possible enquiries from the research community. So that’s the status on paper. In practice, this means: The Commission is already looking for new staff, restructuring departments, has set up or is setting up a research center for algorithmic transparency. And the member states are also working on finding suitable supervisory structures.

This brings us to the situation in Germany. Here, too, the questions arise: How should the DSC be established, how can its independence be guaranteed, how should it be equipped? To this end, Germany’s Federal Ministry for Digital and Transport presented a draft law at the beginning of August, i.e., for the implementation of the DSA in Germany. The core proposal of this draft law is that the German DSC should be established at the Federal Network Agency (“Bundesnetzagentur”, BNetzA) in Bonn. This body is to be independent, so it is not to be subject to instructions from a ministry. It is to receive a research budget, it is also to receive an advisory council. This coordinating body must cooperate with two federal authorities, and the state media authorities also have a role according to the draft.

There were several written consultation comments on this draft law, including from SNV. The draft will soon be discussed in the Bundestag, also in the federal states, and by the beginning of 2024, everything must be in place, everything must be decided. That means that at the moment the draft law has not yet been decided on and there are still many open questions. But it seems quite certain that this coordination office will be established and that it will be set up at the Federal Network Agency. That is why preparations for the DSC activities are already underway there.

I am very pleased to be able to talk to Andrea Sanders-Winter about precisely these preparations and also about the many unanswered questions that still exist in the draft law. Welcome, Mrs. Sanders-Winter, thank you very much for being here! Mrs. Sanders-Winter is head of a sub-department at the Federal Network Agency, where she is responsible for internet and digitization issues. In this role, she has followed the discussions on the German DSC, but also on the developments in other member states, very closely and also helped to shape them, and I am therefore very much looking forward to the discussion and the questions.

Before we get to that, I would like to say a few words about the format of today’s talk. In the first half of it, for about 30 minutes, I will ask Mrs. Sanders-Winter some questions and the remaining 30 minutes will be devoted to questions from you in the audience. Your cameras and microphones are off, so we ask you to put the questions in writing. You can do that via the question-and-answer function, Q&A. You can ask your questions anonymously, you are also welcome to give your name or organization. Questions can be posed in German and in English. And you can also vote on the questions submitted, which helps us to get an idea of what you are most interested in, and I then pass the questions on to Mrs. Sanders-Winter. We will now start with that. I would like to welcome our guest once again. Hello, Mrs. Sanders-Winter, and thank you again for being with us today.

Andrea Sanders-Winter, head of the sub-department for internet and digitization at BNetzA: Thank you very much, Mr. Jaursch, for the opportunity to exchange views here. I think it’s an important topic because the Digital Services Act is, of course, alongside the Digital Markets Act, the second pillar of platform regulation, an essential, important building block in digital legislation at EU level. And I think we are all very curious to see how these new requirements will be implemented in practice.

First of all, I have to say, and you already mentioned it at the beginning, that this is an ongoing legislative process. That means that the Federal Network Agency playing a role as Digital Services Coordinator is the proposal of the BMDV, which is in charge. But that is ultimately a decision for the legislator. We don’t even have a cabinet decision yet, and then we have to see how the legislative process develops. Whether it will then become the Federal Network Agency and in what form, that is all still a bit open. That is why I ask you to understand my comments under this disclaimer. But I look forward to the discussion.

On building the DSC at the BNetzA: “We have something to build on, but it still requires work”

Julian Jaursch: Thank you for pointing that out. I think that was another very good confirmation that we really are still in a process and that’s why it’s great that we can already talk about this and also the role of the BNetzA, should the DSC be established there, that we can perhaps shed some light on this today. As I said, with the caveat that not everything has been decided yet.

Let’s start with the BNetzA and the possibility that the DSC will be set up there. This has been on the horizon for some time. The BNetzA has been in the running for hosting the DSC for a while. At the same time, however, it has always been clear that no German regulator can fulfil all the criteria and requirements that a DSC must have in one fell swoop. This means that no matter which authority would have been appointed, there would always have to be adaptations and modifications. This was established in several legal expert reports, also in an SNV analysis. If I understood correctly, the BNetzA had always emphasized that it was capable of such a revamp. So, the Federal Network Agency’s application, if I may say so, went something like this: “We are a fairly large regulator, we have a lot of experience with EU legislation, we also have a network at the EU level, we have a certain focus on consumer protection and we know a lot about the supervision of large companies.”

Still, there were and continue to be some weaknesses. The BNetzA itself is not an independent authority, as the DSA demands. Until now, its work has revolved quite strongly or more strongly around telecommunications companies, for example, and less around social networks. In general, digital issues have historically only been in the BNetzA’s portfolio for a relatively short time. And even special tasks from the DSA - trusted flaggers, accreditation of researchers, platform design - are not necessarily in the BNetzA’s range of tasks. That’s why my first question is: How do you deal with these weaknesses of your own institution? Is it at all possible now, in the short term, in the process that you mentioned, to address these weaknesses and possibly reduce them in the long term?

Andrea Sanders-Winter: I’ll leave it open whether I would call that a weakness or not. I think the Federal Network Agency has relatively strong thematic references to the DSA per se. In terms of content, you have said that we are a large authority. I believe I can also claim that we are a relatively strong player with a lot of interdisciplinary expertise and with strong networks nationally and at the European level. Of course, we can build on these things. That is something where we can definitely achieve synergy effects. However, I agree with you that the DSA’s portfolio goes much further. Now, the Federal Network Agency is not only a classic regulatory authority, the topic of classic regulation, telecommunications, energy, railways and postal services, but for some years now we have also dedicated ourselves to the topics of digitization. My sub-department in particular, the topic of the internet and digitization, deals with this and has been dealing with the topic of digital services for several years. So, not only from a technical point of view, but also the promotion of technologies, the implementation of EU requirements, geo-blocking is a good example, or net neutrality requirements, but also the role of data. We have looked beyond the traditional telecommunications sector and dealt with the issue of digitization. I believe we can also start here.

A good example is the platform monitoring that we have been doing for several years. Why did we do that? Because we said from the outset that we have to deal with these things first. In order to develop a position, we need platform regulation. Only if you take a close look at platform models and digital business models with their implications for society, for competition, for consumer protection, can you develop a position. That’s what we did and we got involved in the discussion about platform regulation. And that, in addition to following the Digital Services Act, for example, led the BMDV proposing the BNetzA as the German DSC. However, I agree with you that we are of course not ready to take on this task ad hoc with our existing staff, with everything we have.

That is to some extent normal, because these are new requirements. New requirements that now have to be implemented in practice. And that’s why we said from the outset that we have something to build on, but it still requires work. We have to tackle the challenges, recruit new staff, possibly with different job profiles than are usually represented in the Federal Network Agency. Here I say quite honestly about my sub-department: We already have data scientists and computer scientists - but in percentage terms, of course, much fewer than lawyers, engineers or economists.

That’s why I believe that we need to broaden our approach to the task of the Digital Services Coordinator. Not only with regard to data scientists and computer scientists, but also perhaps other professional groups. I would say psychologists, political scientists, people who are able to assess systemic risks correctly. I believe that we have to position ourselves even more broadly here, that we have to expand the portfolio and that we have to build up expertise. I think it would be a lie to claim that we are the ones who already know and can do all this, such as in the area of trusted flaggers or data access for researchers, but we also have to familiarize ourselves with these new things. I think it would be dishonest to claim otherwise.

Setting up a task force to build the DSC: Organizational and content-related preparation at the Federal Network Agency

Julian Jaursch: That’s what I was getting at, precisely this preparation and also the expertise that is desired, that is still to come. Can you already give some insights? How can I imagine this in concrete terms? The staffing, the search for these people, of course your authority is not the only one looking for experts. Are you recruiting from within the BNetzA, so from existing experts? Am I talking to the future head or to an employee of the DSC right now?

Andrea Sanders-Winter: As far as the process is concerned, it is of course still a bit difficult at the moment because, as I said, the German legislator has not yet made a binding decision. In this respect, the discussion about the compliance costs, about financial and personnel support, is ultimately a decision of the legislator. We cannot yet assume that we will get XY posts that we can already advertise. However, the timetable is very tight. We all know that the DSA comes into force at the end of February. You simply need a certain amount of time to prepare for these things, to be able to act.

That’s why we try to find, let’s say, creative solutions. Civil servants can also be creative if they have to be. We are currently setting up a task force, pulling people, staff, together in this task force, in order to do the necessary preparatory work.

This preparatory work takes very different forms, first of all, it is of an organizational nature, of course. We have to think conceptually about how this DSC should be structured in February. This is something where we probably don’t have to make a decision in February, but I believe that it is absolutely helpful to first wait a little bit for practical experience in order to be able to decide whether we need more people in Unit A or in Unit B. The advantage of a task force is therefore that we pull these people together without having a fixed structure. We have some flexibility or adaptability in the structure.

The second area that the task force is now supposed to work on is, of course, the further thematic work, because some decisions are already being made at the EU level. The EU Commission is currently considering launching the delegated act for researcher access to platform data. If we want to be involved in this process, we must of course familiarize ourselves with these topics in order to possibly be able to influence them in our favor.

In addition to the other substantive work, we simply have IT procedures that need to be prepared. From February onwards, we expect a number of complaints. The consumer should be able to turn to this office. Applications should be made by researchers for data access or applications can be made for certification as a trusted flagger or as a dispute resolution body. Of course, we do not want this to be done by e-mail, by letter or in any other analogue way, although that is of course not excluded, but we would like to be prepared for these tasks. Digital reporting forms have to be prepared or digital ways have to be created to facilitate this work. That is why we also have to get this preparatory work underway now, so that we can be operational in February.

The research budget at the DSC: Commissioning researchers in a “wide range of fields”

Julian Jaursch: There are a lot of points that are still worth discussing. There have already been many proposals on how reporting channels can work and how the complaints mechanism can be structured. But I would like to pick out another point first. You mentioned the research activities that a DSC might be able to carry out. As you mentioned, the DSA is deliberately designed in such a way that the Digital Services Coordinators in the member states can request data from very large online platforms in order to better understand these platforms, but also to better understand the risks of these platforms.

The German draft law concerning the DSA implementation provides for a research budget at the DSC, but nothing more is said about this. There are a lot of open questions, at least for me. I think it makes sense in principle that there is this focus to bring research, to bring expertise to the DSC. Can you say something about that? How could a research budget help facilitate these data analyses that you spoke about, the data access requests of the researchers? Are there already initial ideas for that? Is it about the DSC’s own research or about funding external research or both?

Andrea Sanders-Winter: You have to distinguish between two things. Article 40 of the DSA not only regulates researchers’ access to platform data, but the first paragraphs also regulate the DSC’s access to research data. We are currently in consultation with other DSCs on how we should use these things. I think this is a very important tool for the DSC to be able to assess where systemic risks lie, how we can better assess the platform. However, this is something for which we have not earmarked any financial resources, but this is, so to speak, the DSC’s activity to conduct research with data access itself, to build up expertise in order to apply this to the DSC’s work.

The research budget that we proposed is a budget to enable research that we contract, that is, the DSC will fund external research. This is also something that is not new for the Federal Network Agency. We already have a budget for research, depending on the budget situation. Particularly in my sub-department, we regularly commission several studies a year for areas where we either say there is not enough capacity to deal with this topic or because we simply do not have the expertise to do so. We then commission external research. We would like to have our own research budget to finance such external research.

However, this is also currently under discussion. There are also opinions that are very critical of this, because such a research budget is of course not prescribed by the DSA, i.e., it is not mandatory. We have brought this into the discussion and the BMDV has taken it up, thankfully, because we are of the opinion that there will be a large number of areas where we can be supported in our work by external research and where perhaps neither the personnel nor the time capacity is sufficient to deal with a topic in-depth. If one then had the possibility to assign studies that can help us with the new tasks, that would be very welcome from our point of view.

The advisory council at the DSC: “Problematic” when companies are represented

Julian Jaursch: It will definitely be exciting to see whether this research budget is also in the final law and whether there will be more details. That was also a proposal, a demand of many scientific and civil society organizations, long before the draft law was introduced, that there could also be a kind of research focus for the DSC.

This also leads me to another point I wanted to make. And that is the participation of external experts, be it from academia or from civil society. At the current stage, the draft law provides for the establishment of an advisory council consisting of experts from business, academia and civil society. It is to be appointed by the digital ministry at the suggestion of the German parliament’s digital affairs committee.

Exactly what role this advisory council can and should take on remains somewhat vague, at least from my point of view. The requirements for membership and also the tasks could be spelled out in more detail, in my view. It is also unclear what happens with the recommendations of the advisory council. If these ambiguities were to remain, wouldn’t that just be a pretense of external participation, when we don’t even know what happens to the recommendations and analyses of the advisory council?

Andrea Sanders-Winter: I don’t see it that way. The Federal Network Agency has experience with advisory councils. I am referring specifically to our scientific advisory council, which is not called an advisory council, but a scientific working group, but ultimately it is the same word. This scientific working group provides the Federal Network Agency with scientific support in its activities. I think that is a bit of a model for this proposal for the advisory council, but the composition is different. While the scientific working group that we currently have at the Federal Network Agency is a purely scientific advisory group, the intention was to expand the circle of participants in the advisory council.

I think this is basically the right approach because representatives from civil society, not only professors and universities, but also perhaps other stakeholders will play an important role in advising the future DSC. I think it makes sense to set up such a body because it is a permanent advisory body.

Of course, we have numerous other dialogue formats that the Federal Network Agency uses and will continue to use actively. Consultations, workshops on specific topics, you are quite flexible as to whom you consult with on different topics or where you would like to get advice from. Nevertheless, I think a permanent advisory body is extremely important. I believe we should have equal representation. From my personal point of view - and here, too, many things are still unclear - I think it is problematic if those addressed by the DSA are represented in such an advisory council.

Julian Jaursch: So, the companies themselves?

Andrea Sanders-Winter: Exactly, the companies themselves. From my point of view, this should be a body of associations, i.e., consumer protection associations, of representatives of civil society, of academia. I think there is an obvious need for consultation.

As far as the binding nature and the concrete function are concerned, it is helpful that the advisory council answers fundamental questions and is not involved in individual procedures, i.e., specific procedures that are opened against a regulated company. I don’t think that is the task of such an advisory body. But precisely the question of assessing systemic risks is something that requires the broadest possible involvement and consultation of the stakeholders involved. For such things of a fundamental nature, we could very well use such an advisory council.

Julian Jaursch: Understood. I think there is a broad consensus, when I look at the consultation responses, that it’s reasonable to have such a permanent body.

But especially when you say that it is about fundamental issues where the advisory council should be there in an advisory capacity, then what I am missing is at least a certain stronger commitment, where it is said, “Okay, this piece of advice, this recommendation, this study the advisory council published - the DSC must at least take note of that.” There must at least be a reaction to it, perhaps a reason why it is used or not used. That is still missing in the draft. Perhaps that is another point where improvements are still necessary.

Andrea Sanders-Winter: That is actually a matter of course for me. We do the same with our scientific advisory council. If our scientific advisory council issues an opinion on a topic that is relevant for the Federal Network Agency, on an activity, on plans of the Federal Network Agency, of course we take note of it. What is the point of consulting if we don’t take note of it? I think it’s more of a body where you can have an open discussion, where you can raise issues. And if there are recommendations, of course the DSC not only takes note of these recommendations but also incorporates them into its activities, so to speak. In my opinion, that is the purpose of an advisory body. If I don’t want to be advised, then I don’t need an advisory body.

Competent authorities and cooperation: A “strong DSC” is needed to work with the Commission and other regulators

Julian Jaursch: I see it similarly, I just think, as I said, that it could be a little stronger in the bill itself. I would like to address another topic. There are many more questions about the advisory council, concerning the composition, the tasks, and also the equal composition, as you said.

However, before I open the floor to questions from the audience, I would like to conclude by addressing a point that we had already touched on at the very beginning. That is the respective competencies or division of labor between the DSC and other German regulators. We have already said that several authorities can play a role in DSA enforcement. In my view, some things about the competencies are quite clear in the draft law and others are still quite unclear. What is clear to me is that the DSC will be at the Federal Network, that the Federal Commissioner for Data Protection and Freedom of Information has a responsibility, that the Federal Agency for Youth Media Protection has a role, and the state media authorities are also explicitly mentioned.

But what is unclear is who else will be given a role as a competent authority. On the one hand, this refers to the state media authorities, but on the other to the Federal Office of Justice, which was responsible for the German Network Enforcement Act. As I understood it, your office, the BNetzA, had been calling for not naming quite so many competent authorities, and this also came through in many consultation responses, including SNV’s.

Nevertheless, I think the question is important: How can it be ensured that expertise from the Federal Office of Justice, from the state media authorities, from other authorities helps the DSC, that the coordination, the cooperation really works? How do you envisage this exchange between authorities from different regulatory fields and at different political levels in practice?

Andrea Sanders-Winter: Here, too, we have to distinguish between the areas in which we find ourselves. We said in the introduction that the DSC is one regulator. The DSA says that the role of coordinator is assigned to one authority. I think the DSA is clear on that, and according to the current version of the law, this role is to go to the Federal Network Agency. Here, of course, the Federal Network Agency will act in a coordinating capacity anyway. That’s what the name says, Digital Services Coordinator. We coordinate national authorities, we coordinate with other DSCs, with the EU Commission.

Here, too, a distinction must be made: The judicial and administrative authorities remain responsible for removing illegal content. The DSA covers so many regulatory areas and the DSC does not want to become responsible for the removal of this content. So, the regulatory areas on marketplaces - illegal products - or on social media - illegal content. Here, the authorities that have been responsible up to now, be it the state media authorities, be it veterinary offices for animal welfare violations, for plant protection, whatever you can imagine, these authorities remain responsible for it. However, the information on removal orders is to be reported to the DSC so that it gets the overall picture.

So, with the coordinating role, the DSC should not only bring people together and exchange information, but it should have an overall view of the situation. That was also the reason why we said that we are in favor of a strong DSC that really keeps a complete overview. That’s why we called for the new tasks that could have been assigned to other authorities according the DSA, at least theoretically - i.e., “dark patterns”, online advertising, it wasn’t mandatory that the DSC be involved in that - [would be assigned to the DSC], because then it would be a one-stop shop, we are close to what is happening and we get this overall view, which is important, for example, to be able to position ourselves correctly in the European Board on Digital Services regarding systemic risks or also in exchanges with the Commission and the other DSCs. That is why we have spoken out against a fragmented regulator landscape.

As far as the Federal Office of Justice is concerned, let me just say that it is of course a problem that the Network Enforcement Act follows a definition and tasks that have to some extent been overtaken by the DSA. That’s why I don’t think we want the knowledge and expertise in the Federal Office of Justice to be lost. I believe that the Federal Office of Justice has done good work here, which should also be used and which should also flow into the further activities of the DSC. I leave it to the politicians to decide whether this should be done through the transfer of knowledge and personnel, the transfer of positions, or however else it should be done, because it is an open point that simply still needs to be discussed.

Julian Jaursch: In addition to the other topics that we have already touched on – the advisory council, supporting research - the question of responsibilities is one that will definitely play a role in the debate in the further political and legislative process. We could certainly spend the rest of the afternoon talking about this, but I would like to open the questions to the audience and once again encourage those watching and listening to use the Q&A function to ask your questions. Again, we are recording the conversation and will have a transcript, but we will not publish your names there.

The DSC as the central complaints hub: “Have to see what really serves consumers”

Mrs. Sanders-Winter, thank you for our discussion so far and I will now move on to the moderated part. Our first question from the audience: Would the DSC pass on complaints from consumers if the complaints fell within the Commission’s remit? Is this the process that is foreseen?

Andrea Sanders-Winter: Yes, certainly. Of course, we have to look at what the DSC is responsible for as the central complaints body. The situation may well arise that the EU Commission, the Irish DSC or another national authority such as the German data protection officer will become competent according to the current status, according to the competence for profile-based advertising. Then the DSC must forward this complaint to where it can be processed. Because the DSC cannot answer a complaint if it is not competent in terms of content.

However, the draft law provides that the DSC remains the point of contact during the procedure, more specifically, if the consumer so desires, so that the decision as to who is now the competent body is not left to the consumer, but the consumer can continue to turn to the DSC to ask: What is the state of affairs, has there already been a decision on the complaint, yes or no?

Julian Jaursch: There was just one thing here that you mentioned - that consumers have to request to have the DSC as its primary point of contact - where many consumer protection associations such as the Federation of German Consumer Organisations and others have said that it should not be “by request”, but should be by default. I believe that this is also an important open question for the further process, whether this will happen or not.

Andrea Sanders-Winter: Exactly, let me perhaps say very briefly, I think we have to look a little bit at what really serves the consumer. Because if you create a central office - and the question from the audience showed precisely that sometimes there can be complaints for which the DSC is not responsible - whether the consumer is then helped by the fact that the DSC forwards the complaint, someone else answers the complaint and there is always a game of ping pong - what is the state of affairs, what is happening? - of course, there may be cases when the consumer knows that it is not the DSC, it is the data protection officer, or perhaps the complaint is against a removal order at the municipal level and he knows exactly who is responsible for it, then perhaps he can be helped more quickly. You have to make sure that you at least make it possible for the consumer to direct his complaint to where it will actually be dealt with.

Incentives for experts to work at DSC: “We are on the light side of the force”

Julian Jaursch: That’s understandable. I think it’s really a question of leaving it up to the consumer to decide or setting a standard.

I’ll try to work through the other questions quickly here. There was a question about the staff at the BNetzA: At the moment, different organizations, regulatory authorities, but also corporations, are competing for the same experts, employees. How does the BNetzA intend to remain competitive, also with regard to salaries? Or will it also more strongly rely on external consulting services?

Andrea Sanders-Winter: No, our clear goal is to recruit permanent staff and not to rely on consulting services. Of course, I see the difficulty, especially in the area that we mentioned earlier, computer scientists, data scientists, where I think it is also a fallacy to believe that the Federal Network Agency, as a public body, can compete on salaries. It is certainly true to say that more money can be earned in the private sector.

However, we try to have other things that you can perhaps offer on the plus side in the civil service, such as balancing of family and work, flexible teleworking options, many things where we can say that we are trying to encourage the people concerned to join us. Of course, some applicants might also be folks of conviction, after all, we are on the light side of the force. From that point of view, we really do try to recruit staff and try to use all the flexibility of the civil service and public service law that we have to attract people.

Perhaps on a side note, the Dutch colleagues are a bit further ahead than we are and are already relatively far along in the recruitment process. They have received an astonishing number of applications for this area in particular. I think that many people are actually interested in the subject matter and the idea of participating in the implementation of the so-called “digital basic law” is perhaps also something that convinces people.

Entry into force of the DSA on February 17, 2024: “The timetable is very tight”

Julian Jaursch: How realistic is it that the Digital Services Act will come into force in Germany in time for the February 17 deadline next year and what if it doesn’t?

Andrea Sanders-Winter: Good question. I’m not sure I’m the right person to answer that. The schedule is tight, very tight. I think one can say that. However, the colleagues from the digital ministry still have the issue of urgency on the table, i.e., the possibility to declare this bill as an urgent bill, which can speed up the procedure accordingly. But stating whether it will actually pass all the hurdles by the end of February would be like looking into a crystal ball. I don’t dare answer that.

DSC cooperation with researchers: “Ready for a very close alliance”

Julian Jaursch: A question from research relates once again to the cooperation between the DSC and researchers. The comment is that excellent cooperation between DSC and researchers will be necessary for the implementation of the DSA. What is currently planned to promote precisely this cooperation?

Andrea Sanders-Winter: I believe that we need very, very close cooperation with researchers, especially with regard to Article 40. That is why we have put this topic at the top of our list of priorities. I mentioned briefly at the beginning that we are currently working with the Commission and other DSCs to get this delegated act off the ground. Our plan is to involve the national research community to a large extent in these proposals. We are very, very open to workshops, to coordination discussions. I believe that it is very important to ensure a close exchange at the EU level, but also at the national level. This is certainly a very, very important topic at the EU level. As we have already mentioned, we are already working with other DSCs. I believe that cooperation with researchers is also very important here, because many of the research projects are not national research groups. You all know that much better than I do. There are often overlapping communities and cooperations. I believe that we should have a very close alliance on this and the Federal Network Agency is certainly prepared to do so.

Forecasting the number of complaints: “Naïve to believe” that there will be only several thousand complaints

Julian Jaursch: That sounds promising, I think, to the ears of many researchers who are already coordinating and joining forces at both the national and EU level and working out proposals and, as I perceive it, would also like to get involved. This cooperation would be good if it were initiated as soon as possible in the coming year.

The next question is not about research, but about the volume of complaints, whether there are forecasts of what the volume of complaints could be from February 2024 on. Do you base this on the experience of the Federal Office of Justice, are higher numbers expected, what is your expectation?

Andrea Sanders-Winter: It is difficult to use previous experiences under the Network Enforcement Act because the scope of application of the DSA is much broader. I’ll just give you an example: Marketplaces and illegal products are not covered by the NetzDG. When you look at the area of social media, which is, in fact, addressed in the Network Enforcement Act, but only with the focus on hate speech and illegal content, the DSA is also much broader there.

What we have done in estimating the compliance burden is an estimate based on the providers that are covered by the DSA. Here, too, you basically have to assume a certain number, to see how many procedures we will get. These are very vague estimates, because the experience gained so far under the NetzDG for social media will not end up with us – the very large online platforms, i.e., the very large social media, will fall under the responsibility of the Irish DSC, while the Federal Network Agency is responsible for the smaller platforms.

Whether and how far we go here - I would not like to give a fixed number. However, we assume that there will be a high number of complaints. Simply because we have many areas of regulation, we have an incredible number of areas that are covered, we have an incredible number of players that are covered by the DSA. To believe that this would be done with several hundred or even several thousand complaints is, I think, naïve. Now, the Federal Network Agency is also quite experienced in complaint management with several hundred thousand complaints a year. But we have to make sure that we come to grips with this efficiently and effectively. That is one of the reasons we are working on automated IT procedures, to see how we actually deal with a high volume of complaints in practice.

Experts on the advisory council: DSC “must be open to expertise” on systemic risks

Julian Jaursch: I would like to ask the next question about the advisory council. This was a comment and a question from practical experience. It is about dealing with gender-specific digital violence, a question from the Federal Association of Women’s Counseling Centers and Women’s Emergency Hotlines. This gender-specific violence is explicitly named in the DSA as a systemic risk, as was also said in the question, but “only” for very large online platforms. Nevertheless, such violence also takes place on other platforms.

The concrete question is the integration of such expertise, whether there are details on how the advisory council can be staffed, whether there are applications for it. Perhaps you could shed some light on the different views on the advisory council. As a brief preliminary answer: In the comments submitted on the draft law, the appointment of the advisory council was a hotly debated issue, whether there should be applications for it, whether it should be done by parliament, whether it should be done by the DSC. There were very different views on that. Perhaps you could go into more detail here on how this advisory council, as you have just said, should bring in expertise from precisely these experts who also work in practice with those affected.

Andrea Sanders-Winter: I believe that there is still relatively much that is open and under discussion here. Unfortunately, I cannot tell you what the outcome of the discussion will be. But what I believe about the topic you have just mentioned is that there are definitely areas of civil society that should be represented in the platforms, but which perhaps do not cover all topics of the DSA. Rather, they are specialized in a certain, as you rightly said, systemic risk.

I can imagine that the number of representatives from civil society as well as associations will be increased compared to other groups that are represented in the advisory council. Because there are simply so many different areas that can be addressed by civil society and by associations. But in the end, of course, this is simply a number, a question of limitation. We will not have an advisory council with 30 members. In the end, there will be a number, whether it is 16 or more, we will leave that open. And somehow these seats have to be allocated.

However, I also believe that in principle this does not mean that other areas, which perhaps do not cover large parts of the DSA, but only specific parts, that we do not maintain a regular exchange with these colleagues and these representatives and these groups. I could well imagine that especially when it comes to systemic risks or specific areas of systemic risks, that the Federal Network Agency then additionally invites these representatives to consultations, to talks, when this is on the agenda of the DSC, because reports are being evaluated, because reports are being written, because corresponding talks take place in the European Board for Digital Services. One does not exclude the other. I believe that we should be open to other players, especially when it comes to assessing systemic risks.

Julian Jaursch: Perhaps I should make two brief comments at this point, because you also mentioned this - the systemic risks and also the question of whether one is looking at a specific topic or has a broader perspective. This differentiation is important and should, in my view, also be reflected in the advisory council. It is precisely these different perspectives according to different risks, according to different user groups from different platforms, that knowledge can be fed into it.

I would also like to emphasize the second point that you made at the very beginning, namely that there must be other formats in addition to the advisory council. I think that could also be more clearly spelled out in the draft law. If that’s how you already do it in practice anyway, fine. But it would make sense to say that there are, of course, other ways of approaching the DSC besides the advisory council.

No political advisory council at the DSC: The federal states are not involved

Another quick question about the advisory council was whether the federal states are involved. My understanding is that they are not. Do you have any other information?

Andrea Sanders-Winter: No, the concept of the advisory council is an advisory body made up of associations, academia and not politics. As you know, we also have a political advisory council at the Federal Network Agency. This political advisory council is made up of German federal states, ministries and representatives from the German parliament. It’s all about political consultation. Here at the DSC, the advisory council is intended as an expert advisory body and not at the political level, which is why including the federal states is not envisioned in the draft law.

The “authorized recipient” system from the Network Enforcement Act: Useful - but also compliant with European law?

Julian Jaursch: I’d like to briefly raise a question that we haven’t addressed yet, regarding authorized recipients. This is a regulation from the German Network Enforcement Act that requires platforms in Germany to name persons to whom people can turn to for legal matters. There is a discussion about whether, and if so, how this can be implemented in Germany. The question that is being asked here is whether you have a position on this or how you stand on the various points of discussion?

Andrea Sanders-Winter: This is the point that has been discussed for quite some time and here I think we really see a discrepancy with the DSA, which actually assumes that the companies concerned appoint a legal representative. But what this does not cover is an authorized recipient, a provision that we had in the Network Enforcement Act. This raises practical questions. In particular, it is a question of civil law claims, for example, if one does not have an authorized recipient in Germany, how these claims are to be enforced.

I therefore understand the discussion that this regulation of the NetzDG, a really sensible regulation, should possibly be retained. However, this must be examined under the topic of whether it is correct under European law to do so, because it deviates from the approach of the DSA. But I would say that we have clever minds in the ministries who will certainly have an opinion on this and will then make a final decision.

Even before final designation: First networking of different “proto-DSCs” underway

Julian Jaursch: Thank you for the assessment. I would like to conclude with two questions. One question is whether there will be guidelines for the designation of trusted flaggers. Trusted flaggers’ reports of potentially illegal content will be prioritized by platforms. The DSA opens up a possibility for guidelines on this. Can you say something about what is planned?

In connection with this, I would like to directly add the second question. Namely, that the European Commission has already indicated that at least next year it will not be able to manage the enforcement of the DSA on its own and will really be very dependent on the member states. What is the exchange with the Commission like, especially for the oversight of VLOPs? I am trying to link these questions because both also have to do with the Commission, with the other DSCs. Can you please say something about this in conclusion?

Andrea Sanders-Winter: Of course. We have started to network with other so-called future DSCs, i.e., proto-DSCs, as they have recently been called at EU level. Because we believe that it simply makes sense that we [approach] many things, such as the interpretation of the interpretation criteria for “trusted flaggers” at the EU level, in a coordinated way.

In this context, the question has already arisen as to whether the Commission will issue guidelines. The Commission is currently rather cautious about guidelines because it first wants to gather practical experience before coming up with a draft of guidelines. In the discussion with the other DSCs, we are more of the opinion - and we will also raise this with the Commission - that it is helpful for the interpretation of the criteria, i.e., for the first step, paragraph two, so to speak, to coordinate here and to start relatively early with a common understanding. Whether this is done in the form of guidelines from the European Commission or whether the DSCs set their own guidelines for a common understanding can, in my view, ultimately be left open. If the Commission says it can’t manage it in terms of capacity because there are many other things to do, then we have to agree on a consistent approach ourselves.

As far as the work of the Commission is concerned, a process is already underway in which colleagues from the member states are being “recruited” to the Commission, are being seconded partially, i.e., as reinforcements, so that the Commission will be fully operational next year. This is also nothing new. There are also regular secondments from the Federal Network Agency to the Commission. However, this also happens at the level of the ministries, everyone who is interested in working on the topic, there are possibilities to organize this flexibly.

In addition to this personnel transfer, even if it is temporary, there is also the discussion of whether we could imagine a certain division of labor, so to speak, in the supervision of the particularly large platforms. Here, too, the Commission is of the opinion that it could transfer many things that might happen in advance to the national DSCs - that only when it is certain that an official formal procedure will be initiated, it will take over the procedure and transfer things like preliminary talks, clarification of the facts to the respective national DSCs. Here, too, we are in dialogue with the EU Commission. We can certainly imagine being involved in this. In the end, it is simply a question of who has the capacity to do what.

Julian Jaursch: That is enough for a fitting conclusion, because it underlines once again, at least from my point of view, how important it is that the DSC is strong, in the sense that it has networks, that the competencies are clearly delineated, that it has expertise. Because otherwise it is not possible to get involved in the development of the guidelines and it is not possible to support the Commission.

With that, I would like to conclude for today. Thank you very much, Mrs. Sanders-Winter, for being here, for answering my questions, but also for answering so many questions from the audience. I would also like to thank everyone who was here today, who listened and asked questions. To my two colleagues in the background, Justus and Josefine, a big thank you.

We are very grateful for criticism and comments on the format, on the discussion, so feel free to write to us. If you are interested in staying informed on the topic of platform regulation and what is going on at SNV on this, you are welcome to subscribe to our newsletter. All that remains for me to say is thank you very much, Mrs. Sanders-Winter and everyone else, and to wish you all a good day.

Andrea Sanders-Winter: Thank you very much from my side as well.

- End of transcript -


Dr. Julian Jaursch and Andrea Sanders-Winter

09/06/2023 - 4:00pm to 5:00pm