Facebook fined EUR 2 m for infringement of Germany's Network Enforcement Act


Facebook Ireland Limited was fined EUR 2 million by the German Federal Office of Justice (BfJ) for violations of the Network Enforcement Act (NetzDG).

Specifically, Facebook was sanctioned for violating reporting obligations, and the penalties levied against it were the first fines to be issued under the NetzDG, which the German Bundestag passed only two years before.

Created to combat illegal content on social-network platforms, the NetzDG – according to its explanatory memorandum – requires providers to quickly and comprehensively process complaints from users about hate crimes, "hate speech" and other criminal content on their networks.

Too few complaints

How did Facebook violate this act? According to the NetzDG, every provider is obliged to do the following: offer simple procedures for reporting unlawful content, examine the complaints received without delay, remove any illegal content as early as within 24 hours in the case of a clear and obvious illegality (§ 3 NetzDG) and publish a report on its handling of complaints and other measures every six months (§ 2 NetzDG).

Facebook complied with this reporting obligation for the first half of 2018, deleting (by its own admission) 1704 pieces of problematic content. This reported number, however, was ultimately deemed inadequate. According to the BfJ, this figure was surprisingly low compared to 260,000 and 215,000 pieces of problematic content found on Twitter and Youtube respectively.

As a benchmark underscoring the BfJ's decision, note that during every month in 2018, approximately 2.1 billion users in total logged onto Twitter and Youtube while in comparison Facebook boasted as many as 2.3 billion active users.

Facebook's tremendous size in comparison to its competitors contributed to the BfJ's ruling that it was virtually impossible for the social network's complaint figures to be so low.

According to the BfJ, a possible explanation for these low complaint numbers is that Facebook offers two modes of registering complaints: a direct complaint using a help function and a system where users can "flag" any posts that they believe violates the network's community guidelines. Where direct complaints were reported through the NetzDG, a potentially higher number of flagged posts may not have figured into this total, thus resulting in the disparity between complaints lodged on Facebook and those lodged over its two competitors.

Violations of Facebook's community guidelines included cases falling under the NetzDG, but its final report only included the complaints found on the NetzDG form. It is assumed that if Facebook's report had included violations of both the NetzDG and its community guidelines, its final report would have been more meaningful and transparent.

As a result, Facebook's presentation of complaints in its report was distorted. In addition, it appears that Facebook's procedure for reporting the NetzDG violations lacks sufficient transparency, including the fact that the corresponding notification form is hidden.

Ultimately, these problems also seemed to affect the transparency of Facebook's complaint processing.

BfJ criticises reporting

Due to the insufficient listing of complaints, Facebook's report did not provide sufficient information on the measures it takes to report illegal content, according to the BfJ, even though detailed reporting is demanded by the NetzDG (§ 2 paragraph 1 sentence 1, paragraph 2 number 7).

Furthermore, Facebook's information on its organisation, the technical and linguistic competence of its employees and the training of and support for those responsible for handling complaints (§ 2 Paragraph 1 Sentence 1, Paragraph 2 Number 4 NetzDG) was also incomplete in the report.

In addition, Facebook's reporting on feedback to those lodging the complaints was also insufficient and did not include details on the responses made or any conclusions to be drawn.

Because of the incomplete data, Facebook did not provide German authorities with a comprehensive statement on its complaint procedure, which is NetzDG's primary focus and the reason why this regulation was passed by German lawmakers.

Facebook to lodge an objection

This decision is not yet final since Facebook has announced that it will take advantage of its right to file an objection to the BfJ's findings.

Whether Facebook's objection will be successful or not remains unclear, although the NetzDG is highly controversial. Several parliamentary groups in the Bundestag, including the AfD and Die Linke parties, are demanding improvements to the act and even its repeal.

During a 15 May 2019 hearing of the Committee on Legal Affairs and Consumer Protection, however, BfJ President Heinz-Josef Friehe testified that the NetzDG was indeed working. "More than 70 proceedings are underway against operators of social networks," Friehe stated, explaining that his authority considered the NetzDG to be well suited to enforce compliance with all applicable laws affecting the Internet.

According the authority, the only clear area for improvement regards operator reports and the establishment of appropriate reporting channels within social networks and platforms.

For more information on this eAlert, contact your usual source at CMS or Dr Martin Gerecke.