1. What is the notification obligation pursuant to Article 18 of the Digital Services Act?
Article 18 – Notification of suspicions of criminal offences
- Where a provider of hosting services becomes aware of any information giving rise to a suspicion that a criminal offence involving a threat to the life or safety of a person or persons has taken place, is taking place or is likely to take place, it shall promptly inform the law enforcement or judicial authorities of the Member State or Member States concerned of its suspicion and provide all relevant information available.
- Where the provider of hosting services cannot identify with reasonable certainty the Member State concerned, it shall inform the law enforcement authorities of the Member State in which it is established or where its legal representative resides or is established or inform Europol, or both.
2. Who is obliged to notify the authorities of offences pursuant to Article 18 of the Digital Services Act?
Since 25/08/2023, the very large online platforms (VLOP) and very large online search engines (VLOSE) designated by the European Commission have been subject to the statutory obligation to notify law enforcement and/or judicial authorities of suspicions of offences pursuant to Art. 18 of the DSA. Since 17/02/2024, all hosting service providers (HSP) within the scope of Article 18 of the DSA have to comply with this obligation, regardless of their size.
For an assessment as to whether in your particular case there might be an obligation under the DSA/DDG, please contact the Digital Services Coordinator. Under the DSA, the national Digital Services Coordinator - DSC is responsible for supervising and enforcing the DSA in the relevant EU member state and for coordinating matters at national and EU level. Pursuant to the German Act implementing the DSA, the Digitale Dienste Gesetz - DDG, the independent national Digital Services Coordinator - DSC holding these functions in Germany is based at the German Federal Network Agency (Bundesnetzagentur - BNetzA).
3. What kind of offences fall under Article 18 of the DSA?
Pursuant to Art. 18 (1) of the DSA, offences "involving a threat to the life or safety of a person or persons" fall under the notification obligation. The DSA does not provide a catalogue of offences falling under the obligation. Some examples are given in recital 56 of the DSA, which makes reference to offences specified in Directive 2011/36/EU (trafficking in human beings), Directive 2011/93/EU (sexual abuse and sexual exploitation of children and child pornography) and Directive (EU) 2017/541 (terrorism).
The assessment as to whether there is a threat to the life or safety of a person or persons must be made based on the content in each individual case and is therefore, first of all, the responsibility of the provider that is subject to the notification obligation.
When submitting your notice, you have to select one of the 5 fields of crime listed on the notification portal, namely
- Terrorism
- Hate crime including hate speech
- Sexual offence against children and juveniles
- Human trafficking
- Violence
Please note that the above-mentioned fields of crime do not represent an exhaustive list of crime fields that are of criminal relevance under the DSA. If the case does not fit into any of the fields of crime given or if there are uncertainties as to what field of crime to choose, please select "Other".
Please note: Suicide announcements/suicides do not constitute an offence under German law and therefore do not fall under the notification obligation of Art. 18 of the DSA as far as Germany is concerned. Nevertheless, notices relating to suicides can still be submitted to the BKA via the notification portal. Please select the crime field "Other".
4. How can I submit a notice?
The BKA provides the following options for submitting notices pursuant to Art. 18 of the DSA:
- German portal for notification pursuant to Art. 18 of the DSA (accessible at https://u-entrance@bka.de)
- Submission by e-mail to the following e-mail address: xyz@bka.bund.de
Please note: The BKA does not provide a notification portal for the general public. Members of the public as well as entities not falling within the scope of Art. 18 of the DSA can report Internet-related criminally relevant content to their local police authorities, to any other organisation committed to making the Internet a safe place or to their local online police station:
https://www.bka.de/DE/KontaktAufnehmen/Onlinewachen/onlinewachen_node.html
5. Is there any information that is mandatory when submitting a notice to the BKA?
Art. 18 of the DSA imposes an obligation to provide "all relevant information available" to the law enforcement or judicial authorities. Recital 56 of the DSA stipulates the following:
"The provider of hosting services should provide all relevant information available to it, including, where relevant, the content in question and, if available, the time when the content was published, including the designated time zone, an explanation of its suspicion and the information necessary to locate and identify the relevant recipient of the service."
Based on this, the BKA requires the following (minimum) information to ensure the expeditious processing of notices:
- Criminally relevant facts, including time of publication
- User name/user ID/account ID, including user information held
- IP address, if available
- Internal reference number assigned by the entity submitting the notice (in case there are any questions)
6. Information worth knowing about the transmission of evidence to German law enforcement authorities in cases of child and juvenile pornography
The transfer of evidence (e.g. image and video files) to German law enforcement authorities by a hosting service provider (HSP) subject to obligations (under the DSA) does not constitute a criminal offence, even in cases of sexual offences committed against children and juveniles pursuant to section 184b and 184c of the German Criminal Code. Here, the exclusion of facts pursuant to section 184b subsection 5 and section 184c subsection 6 of the German Criminal Code applies.
7. What is the procedure if there is also an obligation to report content to the NCMEC?
Various hosting service providers are required by US law to report punishable content to the NCMEC (National Center for Missing & Exploited Children), or they report such content voluntarily. Within the scope of application of the DSA, they may also, at the same time, be subject to the notification obligation pursuant to Art. 18 of the DSA. If this is the case, it is sufficient to indicate the corresponding NCMEC report number when submitting a notice under the DSA to the BKA. To avoid duplicate notification, there is no need to enter/submit any additional information.
If the respective hosting service provider is only subject to the notification obligation pursuant to Art. 18 of the DSA and has therefore not filed a NCMEC report, the required information about the case must provided and any digital evidence must be attached. "Sexual offence against children and juveniles" should be selected as the field of crime in this case.
General information about the field of crime of sexual offences against children and juveniles can be found on the following website:
https://www.bka.de/DE/UnsereAufgaben/Deliktsbereiche/Kinderpornografie/kinderpornografie.html
8. What is the procedure if there is also a notification obligation under the TCO regulation?
If there is an obligation to notify the BKA under Art. 14 (5) of the TCO (Terrorist Content Online) regulation, there is no need to also submit a notice in accordance with the DSA.
For further information, go to:
https://www.bka.de/DE/UnsereAufgaben/Deliktsbereiche/PMK/TCO-VO/TCO-VO.html