In January 2020, the Federal Office of Justice recognised the association Freiwillige Selbstkontrolle Multimedia-Diensteanbieter e. V. (FSM) as the first institution of regulated self-regulation. So far, the FSM has mainly been active in the field of youth media protection.
In order to be recognised as an institution of regulated self-regulation, the institution must guarantee, in accordance with § 3 (6) Network Enforcement Act, the independence and expertise of its auditors as well as proper equipment, ensure that the reported content is examined quickly within seven days and set up an appeal body. Further, the examination must be governed by rules of procedure that regulate the scope and procedure of the examination as well as the obligations of the participating social networks, and provide for the possibility of reviewing decisions. The institution must also be supported by several social networks and be open to other social networks. So far, Facebook and YouTube have joined the FSM.
The FSM has set up the Network Enforcement Act Review Panel, which is an external expert committee that makes the decisions. Currently, the review panel consists of 50 lawyers. A three-member committee in accordance with the rules of procedure makes the decisions. After the social network has forwarded the report on a content to the FSM, the FSM convenes the three-member committee based on a schedule of responsibilities. If the review panel considers the content to be illegal, the FSM forwards the decision to the social network, which is bound by the decision. The FSM publishes the decisions anonymously on its website. The social network then informs the user responsible for the content in question and the complainant of the decision taken. The user responsible for the content can request a review of the decision within two weeks. For this purpose, he/she must present facts or legal considerations which in his/her view justify a different assessment of the facts. The social network has to inform the user about this possibility.
In April 2020, Preu Bohlig successfully brought about the first published decision of the FSM for a client. The client – a well-known German television presenter – was described as an “old Nazi pig” in a video published on YouTube. On 16.04.2020, the illegal content was reported to YouTube and a request for deletion was sent to the social network. YouTube announced on 22.04.2020 that the case would be forwarded to the FSM. The responsible committee decided on the case on 28.04.2020, the decision was sent by YouTube on 30.04.2020.
The structure and the wording of the decision are comparable to those of a judgement. The committee weighs up the interests of the complainant against those of the user responsible for the content. The decisions are comprehensive and make reference to relevant case law and legal commentary literature.
The commencement of work by the FSM is to be welcomed. Now, when reporting content published on Facebook or YouTube, it can be expected that this content will be forwarded to the FSM, which may lead to a strengthening of the rights of users affected by illegal content, but also of the rights of users responsible for the content. The previous handling of reported content by social networks has been increasingly criticised, as in particular users have complained about the hasty deletion of their posts. The draft law amending the Network Enforcement Act passed by the Federal Government on 01.04.2020 should also be seen in this light, as it, among other things, intends to strengthen the rights of users by improving the user-friendliness of the reporting channels, but also by introducing a counter-notification procedure (§ 3b Draft Network Enforcement Act).
