Public comment: How Germany’s draft DSA implementation law can be improved

Who will become the German Digital Services Coordinator (DSC) and thus the central hub for platform oversight in Germany? The German government has now presented its proposal for this: The DSC is to be set up at the Federal Network Agency (“Bundesnetzagentur”, BNetzA). This is according to the draft law on digital services, recently published by the Federal Ministry of Digital Affairs and Transport (“Bundesministerium für Digitales und Verkehr”, BMDV). 

The draft law serves to implement the EU’s Digital Services Act (DSA) at the national level. The DSA establishes EU-wide rules for video apps, search engines, online marketplaces, social networks and other online platforms. It will apply in its entirety in all member states from the beginning of 2024 and will be enforced by both the member states and the European Commission. The DSC takes on a key role for precisely these enforcement and supervisory tasks. Over the past years, SNV project director Julian Jaursch has analyzed which authorities should be considered for this role (see this paper) and how the German DSC should be structured (see this paper). 

Against this backdrop, he now evaluates the German government’s draft law and provides suggestions for further strengthening independent platform oversight (see the German language public comment here). The main points in brief: 

• The designation of the DSC and the competent authorities represents a pragmatic, if not innovative, solution. The list of competent authorities should not be expanded, while the clarification that other existing authorities can and should continue to perform their duties with respect to platform oversight is useful. 
• The proposed research budget shows that the federal government recognizes the role of the DSC as a data- and evidence-driven regulator. This is an important step. However, this role should be further described and, if possible, expanded. 
• It is essential to keep the suggested role of the DSC as the default central complaints body for all questions regarding the DSA. Any weakening of this provision should be avoided. 
• The exchange between the DSC and external experts is of immense importance. The proposal to create an advisory council is welcome but should be embedded in a broader approach of collaboration between the DSC and academia/civil society. In addition, the function of the advisory council needs to be made more specific and the appointment process needs to be changed. 
• There should be a mandatory, regular evaluation of the DSC.  

The public comment emphasizes the role experts from academia and especially civil society play in DSA enforcement. As the following table shows, civil society groups can fulfill various roles in overseeing compliance with the DSA. 

To include external expertise in Germany’s enforcement efforts, the draft law proposes an advisory council comprised of experts from academia, civil society, consumer protection and business. This is a welcome step, yet several improvements should be made. The following table summarizes key aspects to be considered when establishing any DSC advisory council.