The Digital Services Act (DSA) is a landmark regulation that aims to create a safer and more accountable online environment in the EU. It entered into force on 16 November 2022 and has been fully applicable since 17 February 2024. The DSA poses civil and public litigation risks for intermediary services in the future.

To align federal and state law with the requirements of the DSA, the German Government issued the Digital Services Law (DDG). The DDG came into force on 14 May 2024 and contains, among other things, provisions for the national Digital Services Coordinator (DSC). The DSC is the authority that oversees the compliance of intermediary services with the DSA in accordance with Article 49 of the DSA. According to Section 12 DDG, the German DSC is the German Federal Network Agency ("Bundesnetzagentur"), except for some special cases in  which  other authorities are competent. The Federal Network Agency also established a coordination office for digital services within its structure, according to Section 14 DDG. 

In July 2024, the CDU/CSU parliamentary group submitted a so-called small inquiry (“kleine Anfrage”) to the federal government, asking 53 questions about the implementation of the DDG and the coordination office. The federal government has now published a preliminary version of its response, which reveals some interesting facts and statistics about the public enforcement of the DSA.

Staffing

The response shows that the coordination office is currently staffed with 15 positions, and 33 positions were transferred from the Federal Ministry of Justice. However, the federal government also states that it will advocate for more positions to be approved if there is further need.

No initiated procedures

The response also indicates that the coordination office has not yet initiated any formal procedures against online platforms, but has only conducted preliminary investigations. This means that no violations of the DSA have been detected or sanctioned so far.

Complaints

So far, 222 complaints have been submitted through the complaint portal of the coordination office for digital services. Not all of these are complaints according to Article 53 of the DSA. From the perspective of the DSC the complaint portal has also proven to be an efficient tool.

Trusted Flaggers

Finally, the response also addresses the issue of Trusted Flaggers, which are entities that have a special status and expertise to report violations of the DSA to the coordination office. The response states that eight applications for obtaining the status of Trusted Flaggers have been submitted, but none of them have been granted yet. The response also notes that there are only two certified Trusted Flaggers in the whole EU so far.

Take away:

In conclusion, the preliminary response of the federal government to the parliamentary inquiry shows that the implementation of the DDG and the coordination office is still in progress and faces some challenges, such as staffing, procedures, and cooperation. However, it also demonstrates that the coordination office has already established some important tools and mechanisms to ensure the compliance of intermediary services with the DSA. Given the increasing number of complaints and the expected initiation of formal procedures, intermediary services should not wait until the first sanctions are imposed, but should start dealing with the implementation of the requirements of the DSA as soon as possible, if they have not already done so.

In next week's Tech Litigation Lunchbreak post we will present a brand-new decision of the Higher Regional Court of Nuremberg regarding the host provider liability under the DSA.