IT Law and Data Protection22.11.2021 Newsletter
Online platforms are subject to a number of regulatory requirements. New regulations not only come from Brussels, but also from Berlin. Besides general regulations for online platforms, there are numerous special regulations, e.g. for streaming platforms, social media. Read here which regulations are important for your website.
We have summarised the most important points for you below. Not all regulations apply equally to all platforms. The links will take you directly to the sections of relevance to you.
- For all online platforms: the general regulations of the German Telemedia Act [Telemediengesetz - TMG] and the GDPR.
- For video-sharing platforms: the specific provisions on this in the German Telemedia Act.
- For contract conclusions between platform operators and consumers: e-commerce contracting requirements.
- For platforms where copyrighted content is uploaded: the German Copyright Service Providers Act [Urheberrechts-Diensteanbieter-Gesetz - UrhDaG].
- For platforms on which commercial users offer goods and services to consumers: the so-called Platform-to-Business Regulation of the EU.
- For social media platforms: the German Network Enforcement Act [Netzwerkdurchsetzungsgesetz - NetzDG].
- For all platforms on which goods and services are offered: the antitrust regulation of platforms.
German Telemedia Act and GDPR
The German Telemedia Act (TMG) applies to all online platforms. These fundamentally do not require any special authorisation, such as a broadcasting licence (§ 4 TMG). This also applies to streaming platforms, as long as there are no editorially planned and specifically timed streams. As most people will know: all online platforms must contain an imprint (§ 5 TMG) and data privacy information (Article 13, 14 GDPR).
In addition, the TMG imposes special obligations on video-sharing platforms (§§ 6 (3) and (4), §§ 10a, 10b TMG):
- Users have to be provided with a function with which they can declare whether the streams and videos contain commercial communications, in particular advertising. Videos and streams with commercial communications have to be identified as such.
- Users must be able to electronically report illegal content provided on the platform.
- A process for checking and remedying users’ complaints must be implemented.
E-commerce contracting requirements
If platform operators conclude contracts with consumers via the platform, they must comply with consumer protection law. This requires the observance of special content requirements for contracts and information duties pursuant to §§ 312d, 312i German Civil Code [Bürgerliches Gesetzbuch - BGB] as well as § 36 of the German Consumer Dispute Settlement Act [Verbraucherstreitbeilegungsgesetz - VSBG] (information about the right of revocation, total prices or calculation bases, shipping costs, delivery reservations, etc.).
If, on the other hand, business is conducted exclusively with commercial traders outside the scope of consumer protection law, a corresponding reference to this on the website is mandatory. It is advisable to enquire with each customer as to whether it is a commercial trader (through a checkbox near the order button or the like).
If platform operators merely enable the conclusion of contracts between third parties without themselves becoming contracting parties to these transactions, the platform operators themselves are not subject to any obligations under consumer protection law or e-commerce law with regard to these contracts. This is the case, for example, when contracts are concluded between traders affiliated to Amazon and customers via Amazon Marketplace.
The German Copyright Service Providers Act
The German Copyright Service Providers Act (UrhDaG) obliges platform providers who publish copyrighted content uploaded by users to acquire licences and to block copyright-infringing content. However, the UrhDaG also stipulates certain exceptions and limitations to these obligations, e.g. certain uses (such as quotations of works) are permitted without a contractual licence (which must be pointed out to the users).
In addition, under the UrhDaG, said platform providers must also pay the author an appropriate remuneration for the public reproduction of the work. Direct remuneration claims of the authors against the platform providers are thus possible.
P2B Regulation (EU)
The so-called P2B Regulation applies to online platforms on which commercial users can offer goods and services to consumers, such as Amazon Marketplace. The requirements are intended to protect commercial users that are dependent on the platform provider and have to be listed in the platform’s general terms and conditions (GTC).
The GTC must, among other things:
- precisely regulate when the provision of the platform can be suspended, terminated or restricted for organisers
- contain information about additional distribution channels or possible partner programmes
- explain the main parameters and their weighting that determine the ranking, i.e. the order in which the individual offers are displayed
- regulate the termination rights of the organiser and specify whether a right of access to the information provided by the commercial users exists after the contract has ended.
The restriction, suspension or termination of access to the platform for individual commercial users must be announced (if possible in advance). In addition, the organiser must be given the opportunity to defend itself through a precisely regulated internal complaints procedure. The provider must name two mediators in the GTC to whom the organisers can turn.
If the platform provider restricts the commercial users in the marketing of their products elsewhere, this has to be regulated in the GTC.
In addition, the following requirements apply:
- The GTC must be permanently accessible. It is therefore advisable to add a link to them on the platform.
- The GTC vis-à-vis existing customers can only be amended according to a specific, prescribed procedure.
- The identity of commercial users must be clearly displayed on the platform.
The restriction, suspension or termination of the service must be announced to the organiser (if possible in advance).
The German Network Enforcement Act
The German Network Enforcement Act (NetzDG) applies to online platforms on which users can share and/or publish information and content (social media platforms). The law only applies as of more than two million users in Germany.
The purpose of the NetzDG is to prevent and investigate hate crime, illegal fake news and other unlawful behaviour on social media platforms. It obliges platform operators to set up an efficient complaints management system. Foreign operators must appoint a German representative. The Federal Government recently proposed an update to the NetzDG. This is to include details of reporting procedures, the obligation for platform operators to produce an annual transparency report and other details.
1. General conditions
Antitrust law prohibits the exchange of competition-relevant information between competitors. Operators of online platforms should therefore ensure that no competition-relevant information is exchanged on the platform.
Accordingly, the platform should be designed in such a way that it is not possible to draw conclusions about the competitive behaviour of competitors. If the platform operator is competition with the companies offering on the platform, it may not have access to competitively sensitive information of the providers (including orders, prices, sales, investments or current business policy). A personnel, organisational, informational and technical separation between the platform and the other business areas of the operator must be ensured.
If the parent company of the platform operator is a competitor of the providers, rights to information and access under corporate law are to be restricted. The platform’s organisation must be strictly separate from its parent company if the latter operates on the same market as the providers. In the case of overlapping personnel, such personnel must at least have no access to competition-related information.
Providers are to be separated from each other by means of a "Chinese Wall". A technically secure, isolated provider area must be created in which each provider can only view the customer data of its own customers. In order to prevent price-fixing between providers, the identity of the trader should at best only be disclosed in a final step before the contract is concluded. In order to prevent a circumvention of these arrangements through 'competitive supplies', the platform's code of conduct should prohibit such an infringement.
Participation in platforms may also be subject to merger control. Similarly, cooperations between platforms can be problematic.
2. Regulation of “gatekeepers”
Online platforms act as intermediaries in multilateral markets. The resulting position vis-à-vis providers and customers can cause dependencies that are increasingly becoming subject to regulation.
In this context, the German Act against Restraints of Competition [Gesetz gegen Wettbewerbsbeschränkungen - GWB] recognises the intermediation power of platforms as a criterion for determining a dominant position. This may result in claims to access both the actual platform and the data of the platform provider. Under certain conditions, such claims are already conceivable if the claimant is dependent on access to the platform or data (so-called relative market power). Furthermore, the GWB provides for an additional regulatory framework for companies with outstanding cross-market significance for competition. This is only applied if the German Federal Cartel Office [Bundeskartellamt - BKA] has established a company’s outstanding cross-market significance by way of disposition. From then on, it may prohibit certain commercial practices of the company in question (including self-preferential treatment of its own services and performances over those of competitors or obstacles to interoperability). In essence, the aim here is to record the key positions of very large platform operators with central importance in various markets, such as presumably the so-called GAFA in particular. Accordingly, the German Federal Cartel Office has since initiated proceedings against Google, Apple, Facebook and Amazon.
The European Commission is striving to fundamentally reform the regulatory framework for platforms as part of its digital strategy. The cornerstones of this strategy are the Digital Markets Act and the Digital Services Act (still in the draft stage). Economic imbalances and unfair business practices of "gatekeepers" in the digital world as well as the ensuing undisputable market positions of the “gatekeepers" are to be prevented.
The Digital Markets Act stipulates a catalogue of prohibitions and obligations for “gatekeepers”. For example, the use of transaction and user data for personal gain is to be prohibited. This is not uncommon in today’s digital economy.
The Digital Services Act is primarily intended to regulate the risks of digital business models (algorithmic decision-making, disinformation campaigns, dissemination of illegal content). In addition, it is to regulate the liability of the online players involved and introduce transparency and compliance obligations. The Digital Services Act imposes certain conduct obligations on digital service providers. The businesses it will cover are those that act as intermediaries between consumers and providers of goods, services and content (intermediaries).
In addition, it can be assumed that the special competitive features that arise in online platforms will increasingly also be considered in other areas; for example, in the context of the revision of the so-called Vertical Block Exemption Regulation expected in summer 2022, which has enormous practical relevance for the e-commerce sector.