In real or perceived times of crisis governments like to resort to legislation to demonstrate their energy. But not only gun law, but also digital law is now often used to provide evidence of fitness for work. And so, amid all sorts of projects in residency, police and weapons law, an initiative has also been announced to replace the EU’s Digital Services Act (DSA), which has just come into force.
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In a package of measures following the Solingen attack claimed by the so-called Islamic State, the federal government urged that the DSA, which was a year old, be tightened at EU level. According to the paper approved by the coalition, the changes should identify “specific criminal offenses”, such as “spreading and inciting propaganda from anti-constitutional and terrorist organizations”. In this way, the traffic light seeks to consistently combat criminal content on online platforms.
However, there is no EU-wide criminal law with harmonized criminal offences. Rather, states agree in framework decisions to have similar legal norms in criminal law. But in particular the German norm on provocation, in its strict form, which was changed in 2023, is unknown in many EU states and goes beyond the common EU framework.
The federal government has apparently not coordinated its initiative in the Council of Member States, with the EU Commission or with European Parliament members from its own parties. An EU Commission spokesperson claimed online that the DSA already regulates illegal content under national law and obliges platforms to flag such content by users and then take immediate action. The DSA’s final regulation also does not include violations of national rules.
Falk Steiner is a journalist in Berlin. He works as a writer for Heise Online, daily newspapers, specialist newspapers and magazines and reports, among other things, on digital policy in the federal government and the European Union.
The federal government doesn’t know exactly yet
The federal government has not yet been able to clearly state what exactly its proposal means. In any case, a spokesman for the Federal Ministry of Justice (BMJ) is currently denying an initiative for a full European harmonisation of criminal law. The ministry, led by FDP politician Marco Buschmann, is responsible for criminal law. But without clearly defined European criminal offences, the DSA, like the former German Network Enforcement Act, cannot specify a conclusive list of specific offences. This was intensely debated during the DSA negotiations – which resulted in the current legal situation. The national criminal offences of the 27 member states are reference points, but they must be adapted to EU law.
However, the federal government now wants something completely different. “The federal government will work in close coordination with European partners at EU level to extend the reporting obligation for hosting service providers provided for in the Digital Services Act,” explained a BMJ spokesperson when asked by Heise Online. Article 18 of the DSA states that hosting services must immediately inform the competent authority – the BKA in Germany – if a crime against life, limb or freedom of a person is suspected. This is actually not enough for the police authorities: they would like to have more reporting requirements for providers. But according to the Federal Ministry of Justice, what the federal government really wants here has not yet been answered: it is still too early in the process to provide a more precise answer.
European MPs surprised by traffic light
The plan does not even seem to have been discussed with the DSA-enabling MEPs of her own party families. In any case, Green MEP Alexandra Geise sees no reason for the federal government to proceed: “The DSA already provides responsible authorities with concrete options to pursue criminal content on online platforms. These should be actively used.” The DSA could also influence targeting and the design of algorithms. “It is these mechanisms that make the Internet such a strong platform for extremist or terrorist organizations.” Changing the DSA would be legally problematic due to the lack of a legal basis for the inclusion of criminal offenses – and a change in the law would take a lot of time, explained Geise when asked by Heise Online.
SPD MEP Timo Volken is also irritated: “Since 2021 there has been a regulation on the dissemination of terrorist content online at European level, which specifically deals with this very question and gives platforms a one-hour deadline to remove terrorist content set.” The Terrorist Content Online Ordinance (TCO-VO) is one of the sharpest swords of law enforcement authorities: Police authorities such as the Federal Criminal Police Office use the tool to notify platforms – but they are also allowed to issue removal orders. Even Telegram, which otherwise does not always cooperate with the authorities as desired, fully complies with these orders. For Timo Volken, it would not be the DSA but the old TCO that would be a possible starting point: “If the federal government sees the need for changes beyond these regulations, a reform of this regulation would be the right starting point instead of opening up the Digital Services Act, which has just come into force, and thus creating legal uncertainty “before the law is fully implemented and the responsible authorities are properly equipped.”
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