DDG-Entwurf: So kann eine starke, unabhängige Plattformaufsicht noch gelingen

The German government released its draft law on enforcing the EU’s “Digital Services Act”. SNV project director Julian Jaursch commented on the bill in an opinion piece for netzpolitik.org. An English translation of this text with first impressions on the bill can be found below, while an in-depth statement on the draft law will be published later. 

 

Digital Services Act: This is how Germany can still establish strong, independent platform oversight 

 

For months, the German government has been wrangling over who should be responsible for implementing new platform rules from the EU’s Digital Services Act. Now a proposal is out, but it leaves important questions unanswered. Our guest contributor Julian Jaursch weighs the options and makes recommendations. 

In a good six months, Germany must have determined who will implement the new EU rules on online platforms from the Digital Services Act (DSA) and how this should work. In early August, a draft for the German digital services law was published, which is intended to transpose the provisions of the EU regulation into national law. The draft law was penned by the German Federal Ministry for Digital and Transport and is still subject to change –other ministries as well as the federal states and associations can submit proposals. 

The DSA lays down EU-wide rules for digital services such as social networks, search engines and online marketplaces. The declared aim of the DSA is to ensure a “transparent and safe” online environment, for example, by establishing uniform rules for platforms’ complaints mechanisms and for explaining online advertising and recommender systems. Very large online platforms must comply with additional transparency and security measures. The regulation applies directly throughout the European Union and replaces, among other laws, the German Network Enforcement Act (NetzDG). However, EU member states will have to create some new legal provisions themselves, in particular on enforcing the rules. 

Strong enforcement of the DSA is vital to ensure independent, user-friendly platform oversight in Germany and the EU. What may seem like trivial bureaucratic questions about regulatory responsibilities affect how people can complain about possible DSA violations, how researchers can request data from platforms and how trusted flagger systems for content moderation work. 

These and other tasks all fall within the remit of a new regulatory body that each EU member state has to set up, the “Digital Services Coordinator” (DSC). For this reason, civil society organizations, including Stiftung Neue Verantwortung, had repeatedly pointed out that member states such as Germany need well-structured, strong and specialized DSCs for platform oversight. 

Now that the federal government’s ideas are public: Would they ensure such strong platform oversight in Germany? I will focus on two aspects of the bill here that are particularly important for this, regulators’ responsibilities and the inclusion of expertise from academia and civil society. 

 

Clarifying regulators’ division of labor 

 

The bill clearly answers some questions on what regulator is responsible for what issue, while it deliberately leaves other issues open for the ongoing expert hearing because there was no agreement on them. 

What is clear is that the DSC will be set up at the Federal Network Agency for Electricity, Gas, Telecommunications, Posts and Railway (BNetzA). It will be called “Koordinierungsstelle für digitale Dienste”. The DSC is thus established as the central supervisory body for online platforms in Germany (except for the very large ones such as TikTok and YouTube, which are mainly overseen by the European Commission). Users can contact the DSC if they suspect violations of the DSA. According to the draft, the DSC is not to follow any instructions from the federal government in order to meet the DSA’s demands for its complete independence. 

It is also largely undisputed that the Federal Commissioner for Data Protection and Freedom of Information as well as the Federal Agency for Youth Media Protection will be responsible for implementing some parts of the DSA. 

However, for a key point of contention, the bill only contains a placeholder: Which other regulators should have a dedicated role in DSA implementation? For example, the draft devotes its own article to the state-level media regulators. Yet, it is uncertain whether the “qualified cooperation” described there will be enough of a guarantee for media authorities that they can continue to perform their statutory duties regarding youth media protection. 

Looming behind this open question is the larger issue of what kind of “coordination” the DSC should be doing. Does coordination mean that the DSC refers questions and procedures on many DSA matters to other agencies because they are responsible for them? Or does coordination mean that the DSC seeks expertise from other regulators and takes responsibility for DSA enforcement itself? In the first case, the DSC would be a kind of secretariat, possibly comparable to Germany’s “Data Protection Conference” a forum for state and federal data protection commissioners. In the second case, the DSC would be the node of German platform oversight, benefiting from and pooling the experience of other regulators – again, without taking tasks away from them. 

German legislators must now choose between these two alternatives. In the interest of consumers and researchers, the recommendation is clear: No other regulators should be designated as “competent authorities”. Users and researchers would benefit from a single point of contact with its own platform expertise for their complaints and for their requests for platform data, respectively. Developing its own specialized knowledge is not only important for the DSC to implement the DSA in Germany. It is also a necessary requirement for the DSC to cooperate with the Commission and other DSCs at the EU level. 

 

Involving and promoting external expertise 

 

The bill offers progressive ideas for including civil society and scientific expertise, but still needs clarifications in important areas. There is to be an advisory council with representatives from business, academia and civil society as well as a research budget. The fact that the involvement of external experts is thus enshrined in law is a good starting point for strong platform oversight. Both ideas can support the DSC in developing expertise on platforms. Up until now, it has mainly been experts from academia and civil society who have studied platforms, their various business models and (systemic) risks. Especially at the beginning, it is important to bring this knowledge and experience into the DSC. 

However, a lot depends on the structure of the advisory board and the research budget. The bill lacks details on how the advisory council must be consulted. In addition, the actual set-up of representatives on the council remains unclear – will 12 business representatives sit next to four experts from academia and civil society? The appointment by the German parliament and the federal government also raises questions. It must be prevented that council members are selected based on party-political considerations rather than based on substantive expertise. As for the research budget, which at 300,000 euros a year is not exactly lavish anyway, there are no details whatsoever about what the DSC is allowed or supposed to do with it. Conduct its own research? Use it for outside studies? Establish a research community? Engage in targeted science communication? 

Policymakers now still have the opportunity to expand on the promising proposals. A clear explanation of how the advisory council can get involved is necessary. A kind of “distribution key” for the various representative groups could be considered. Parliament and the DSC could share responsibility for appointing members, so that no side has too much influence on the council. They could also, for instance, jointly hold an open application process. Regardless of how the advisory council is designed, it would be much more useful to embed it in an overarching structure for cooperation between the DSC and civil society. This will make it clearer that an advisory council can only be one of many formats to bring external expertise and various stakeholder perspectives into the DSC. In any case, conferences, consultations or roundtables should not be ruled out as means of engagement. For the research budget, not every detail should be spelled out but a little more clarity on the DSC’s position in platform research is needed. Otherwise, the topic might easily fall under the table. 

 

Ensuring strong infrastructure and leadership 

 

The actual strength of the advisory council and the research budget are related to the basic role envisioned for the DSC. If it must cede many responsibilities to other regulators and assumes only limited responsibility for enforcing the DSA, even a multimillion-dollar budget and a top-notch advisory council will be rather pointless. Legislators could opt for this interpretation of coordination. If they did, they just could not claim that Germany has a new platform regulator for the DSA. Rather, the press release announcing the launch of the DSC in February 2024 would have to read: “Germany has another federal-state working group” 

This would hardly serve users or researchers. Currently, a multitude of different authorities with limited competencies and resources are responsible for keeping an eye on platforms. Instead of continuing this rather tedious approach, it is in the interest of consumers to pool expertise and competencies. This should enable Germany to not only counter possible DSA violations are but ideally even prevent them. For that to happen, the DSC requires its own responsibilities, external experts, adequate resources and, crucially, a motivated leadership level that is not afraid to stand up for the protection of fundamental rights in Germany and at the EU level. Policymakers at the federal and state levels now have it in their hands to lay the groundwork for this.