Legal situation
Digital Services Act: What Platforms Must Do About Online Hate
Hass-Hetze editorial team6 min read
As of · General information, not legal advice
Since February 2024 the Digital Services Act has applied across the EU. It sets out how platforms must handle reports of illegal content – and what rights you have as the person reporting.
If you report a hate comment on Instagram, TikTok or X, your report must not simply vanish into thin air. Since 17 February 2024, the Digital Services Act (DSA, in German Gesetz über digitale Dienste) has applied across the whole EU. It lays down how platforms must handle reports of illegal content – and what rights you have if you do not agree with a decision.
In the past, Germany's Network Enforcement Act (Netzwerkdurchsetzungsgesetz, NetzDG) was the main law. Today these duties are governed by the DSA and the German Digitale-Dienste-Gesetz (DDG, the German act accompanying the DSA). This article shows what that means in practice for you.
Who the DSA applies to
The DSA applies to online services aimed at people in the EU – regardless of where the company is based. The most important for you are online platforms, that is, services on which users share content publicly: social networks, video portals, forums.
Particularly strict rules apply to very large platforms with at least 45 million active users per month in the EU, for example Instagram, Facebook, TikTok, X and YouTube.
For private chats in messengers such as WhatsApp, the rules for online platforms mostly do not apply, because content there is not distributed publicly. There you are left with the app's report function and the route via the police or a law firm.
What the DSA does not regulate
The DSA does not say which content is illegal. That follows from other laws – for online hate, mainly from the German Criminal Code. Which statements fall under it is explained in Online Hate: What Is a Criminal Offence?.
Also, the DSA is aimed at platforms, not at the person spreading the hate. A deletion ends the attack on the platform. It punishes nobody and does not stop the same person from carrying on with a new account. For that you need criminal or civil law.
The reporting route step by step
1. You report the content
Platforms must offer an easy-to-find, electronic reporting route (Art. 16 DSA). You usually find it in the three-dot menu next to the post. Many platforms distinguish between breaches of their own rules and illegal content. For possible criminal offences, use the route for illegal content if there is one.
A report should contain:
- the exact link to the content,
- a short explanation of why you think the content is illegal,
- your name and email address,
- a statement that your information is correct and complete to the best of your knowledge.
If a report is precise enough for the platform to recognise the infringement without a detailed legal examination, the platform is deemed to be informed. From then on it can no longer claim it knew nothing.
Example: “The comment by @example_account under my post of 3 October reads: ‘I know where you work. When you come out, I’ll beat you up.’ That is a threat of violence against me, in my view a threat under § 241 StGB.” Short, specific, easy to follow.
2. The platform reviews and gives reasons
If you give an email address, the platform must confirm receipt. It must then process the report in a timely, diligent, non-arbitrary and objective manner. It must tell you its decision, together with the options for challenging it. If it uses automated systems for this, it must disclose that too.
Unlike the former NetzDG, the DSA sets no fixed deadline in hours. If the platform removes the content, it must also give the person who posted it the reasons (Art. 17 DSA).
If content points to a criminal offence that endangers people's lives or safety, the platform must inform the law enforcement authorities (Art. 18 DSA). Do not rely on that. In the case of a specific threat, contact the police yourself.
3. Internal complaint
If the platform rejects your report, you can lodge a complaint with it (Art. 20 DSA). This can be done electronically and free of charge, for at least six months after the decision. The platform may not decide on this by automated means alone; qualified staff must be involved.
4. Out-of-court dispute settlement
You can also turn to a certified out-of-court dispute settlement body (Art. 21 DSA), for example if the internal complaint achieved nothing. These bodies are independent and approved by a supervisory authority. For you, the procedure is free of charge or costs only a small fee. If the body rules in your favour, the platform bears the fees.
The body's decision is not binding. But the platform must engage with the procedure in good faith. The route to a court remains open to you.
Who oversees the platforms
In Germany, the Federal Network Agency (Bundesnetzagentur) oversees, as Digital Services Coordinator, whether platforms comply with their duties. The very large platforms are supervised mainly by the European Commission. For breaches, fines of up to six per cent of worldwide annual turnover are possible.
If a platform violates its duties – for example it offers no working reporting route or never answers reports – you can complain to the Bundesnetzagentur (Art. 53 DSA). Important: the authority does not decide whether an individual comment is illegal. It checks whether the platform follows the rules.
Trusted flaggers
The DSA recognises so-called trusted flaggers (in German vertrauenswürdige Hinweisgeber; Art. 22 DSA). These are organisations with special expertise, approved in Germany by the Bundesnetzagentur. Platforms must process their reports as a priority. If your own report gets nowhere, going through such an organisation can help.
Typical mistakes when reporting
- Reporting before securing evidence. If the content is deleted, your evidence is gone too. How to secure it properly is explained in Securing Evidence of Online Hate.
- No explanation. A click on “Harassment” without explanation leaves the platform plenty of room. One or two sentences on the context help.
- No notes. Without the date and number of the report, it becomes hard to complain later or to prove that the platform knew.
- Reporting everything that bothers you. Anyone who frequently sends obviously unfounded reports risks the platform no longer processing their reports for a while (Art. 23 DSA). Concentrate on content that could be illegal.
What this means for you
The DSA strengthens your position: your report has to be processed and answered, and you can defend yourself if you disagree. But it does not replace legal action against the person who wrote the content. Whether a criminal complaint, an injunction or damages come into question is explained in Criminal Complaint or Lawyer?.
What you can do now
- Secure the content with a screenshot, link and date.
- Report it to the platform, with the link and a short explanation.
- Note the date and number of the report and keep the platform's reply.
- If you disagree with the decision, lodge a complaint or turn to a dispute settlement body.
- If you want to take action against the person themselves, report your case via our form. We check your report for completeness and refer it to a partner law firm.
What counts as hate speech is explained in Cyberbullying and Hate Speech. You will find first steps after an attack in What to Do About Hate Comments: 5 Concrete Steps.