New Draft Legislation Threatens German Social Media and Blogging Community

Sebastian Hinzen

The Broadcasting Commission of the German Federal States has published a new draft amendment to the Interstate Treaty on the Protection of Minors in Broadcasting and Telemedia (“Jugendmedienstaatsvertrag” – “JMStV”). The draft anew picks up the idea of introducing an age rating for blogs and social media, and requires bloggers and social media providers to take measures to prevent posting of harmful (user generated) content. The administrative effort connected herewith and the potential liability under the new JMStV will pose serious problems to providers of social media, especially to bloggers and may have a devastating effect on the German social media and blogging community.

Under § 5 I of the current JMStV, providers of content which is harmful to minors are obliged to take measures to prevent access to such content for minors, e.g. by using youth protection programs or making such content only available at certain (night) times. This obligation does currently not apply to providers of social media as their own content is usually not harmful to minors. According to the liability privilege set out in §§ 7 et seq Telemedia Act (“Telemediengesetz” – “TMG”), in particular § 10 TMG, they are also prevented from liability for third party, i.e. user generated content unless they do not immediately take action after having become aware or being noticed of the harmful content (notice and take down procedure).

The draft amendment of the JMSTV seems to intend to waive this privilege for user generated content and extends the obligation set out in § 5 I JMStV to any social media providers without distinction.

To satisfy the obligation to prevent access for minors to harmful content, social media providers will be required to take the following two measures ...

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