Stellungnahme zum Entwurf des Digitale-Dienste-Gesetzes

Tobias Mast has written an expert opinion for the Bundestag on the draft Digital Services Act (DDG). It is available on the Bundestag server: https://www.bundestag.de/resource/blob/990562/688777df60250ea4d22b717e8131a852/Mast.pdf (in German).
 

Key findings and proposals

1. The designation of the legal act under review here as the "Digital Services Act" may cause confusion in terms of the rule of law due to the official designation of the DSA as the "Digital Services Act".
2. The requirement for expertise for the management of the coordination office, which was still envisaged in the DDG's draft bill, should be reinstated.
3. It should be made clear that only the coordination body has the right to vote for Germany in the European body.
4. The other authorities responsible for enforcing the DSA should also be authorized to participate in the information exchange system pursuant to Art. 85 DSA, subject to a Commission decision to the contrary.
5. Consideration should be given to amending the interim provision of Section 16 (4) sentence 4 DDG-E to the effect that the Federal Commissioner for Data Protection and Freedom of Information should be made the managing director of the coordination body until its head is appointed.
6. The advisory board in accordance with Section 21 DDG-E should be given stronger rights to information and disclosure in order to be able to gain a permanent insight into the activities of the coordination office and to be able to publicly evaluate and criticize these activities.
7. The functions assigned to the advisory board should not only be exercised vis-à-vis the coordination body, but also vis-à-vis all authorities entrusted with the enforcement of the DSA in accordance with Section 12 DDG-E.
8. Consideration should be given to having the management of the coordination body elected or at least proposed by the advisory board.
9. Section 17 DDG-E should be amended to the effect that the coordination body is informed of the orders issued by the national judicial or administrative authorities in accordance with Art. 9, 10 DSA in good time for the annual preparation of the activity report, irrespective of whether the service providers concerned have provided information on the execution of their orders (clarification of Art. 9 para. 3, Art. 10 para. 3 DSA).
10. The proposed staffing requirements at the Federal Criminal Police Office appear oversized. Consideration should be given to replacing some of these with additional posts at the Coordination Unit.
11. Section 28 (1) DDG-E should be amended to the effect that the coordination office is obliged to actively inform the public.
12. The extension of the scope of application of the Whistleblower Protection Act to the DSA, as envisaged in the DDG's draft bill, should be reinstated.
13. There should be a narrowly defined list of offenses to be reported to the Federal Criminal Police Office in accordance with Section 13 DDG-E in conjunction with Art. 18 DSA. Art. 18 DSA should be included in the DDG.
14. The demarcation of responsibilities in Section 12 (2) DDG-E between the Federal Agency for the Protection of Children and Young Persons from Harmful Media and the state authorities is unsatisfactory and should be replaced by a demarcation based on the object of regulation or a catalog of measures that is conclusive under federal law.
15. The federally divided and cooperative fulfillment of tasks by federal and state authorities is constitutionally permissible and, in particular, does not violate the prohibition of mixed administration.
16. A coordinated EU-wide approach in the European body, jointly managed databases and interoperable formats in the European administrative network should be promoted as early as possible.
17. Although the requirement of a domestic authorized agent for service of process in Section 5 NEA does not violate the country of origin principle of the E-Commerce Directive for services located outside the EU, in our opinion, Articles 12 and 13 DSA take precedence.
18. If Section 5 NEA is upheld despite these concerns, it would be desirable for the standard to be integrated into the DDG or the Digital Protection against Violence Act and for NEA to be repealed in its entirety.
19. The EU Commission Recommendation C(2023)2853 against online piracy does not call for any legal adjustments, but can be taken into account by the German authorities within the scope of their remaining leeway.
20. Despite its sweeping nature, the exclusion of suspensive effect under Section 31 (1) DDG-E is plausible against the background of EU law.
21. Despite the efforts made by the DSA to stratify its level of regulation proportionately between service types and sizes, it will burden certain companies with considerable bureaucratization. However, the authorities still have scope to mitigate any hardships in individual cases.
22. The particularly strict principle of certainty under Art. 103 para. 2 of the Basic Law applies to the fines under Section 33 DDG-E. The DDG-E is therefore well advised not to impose fines on the very vague provision of Art. 18 DSA.
23. The argument against far-reaching fines is not convincing. The coordinating body has discretion in terms of the opportunity principle when it comes to enforcement. Moreover, staffing levels should be commensurate with the tasks.