By Joe McNamee

Professor Wolfgang Schulz, one of Europe’s preeminent legal experts, has prepared a short critique of Germany’s so-called “Act improving Law Enforcement on Social Networks”, also known under the abbreviation NetzDG.

Professor Schulz criticises the fact that the draft law covers a range of different types of offences, making it difficult to assess its necessity as a means of restricting freedom of speech. More damningly, he points to the key assumptions on which the law is based, arguing that they have been abandoned “for a long time”. Furthermore, he argues that “there are many effective ways of addressing fake news or hateful speech” that should be [implicitly, were not] taken into account to minimise potential negative effects on freedom of speech”.

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EDRi’s suggested amendment to recital 31 of the Audio-Visual Media Services Directive, adopted by the European Parliament’s Civil Liberties Committee, raises concerns about the “balance of incentives” for internet companies. In line with the amendment, Professor Schulz points to the negative consequences of the German law for the “incentive structure” for social media companies. He argues that the draft law “strengthens this incentive structure further at the expense of freedom of speech”. In short, the incentives to remove information are increased, while incentives to leave information online have been reduced.

Professor Schulz also points out that the aim is not the criminal prosecution of offenders, but that the law “rather creates duties and provisions for administrative offences for platform providers”. The solitary provision that does focus on offenders is too broad and should be “restricted to particularly grave infringements upon rights only”. He also raises very clear arguments regarding the constitutionality of the proposal. His argument is that, as the focus is on regulation of content and not criminal prosecution, there is no specific federal power provided for in Germany’s “basic law” (Grundgesetz), which devolves content regulation to the regional governments (Länder).

The analysis of scope is particularly depressing. The term “provider” has already created problems in the German Telemedia Act, the term “user” is unclear regarding the applicability of the act, and business networks have been excluded in a way that risks “favouring domestic companies”. While freedom of speech would normally have to be considered when dealing with content of this nature, “the draft does not allow for that”.

The document also points to the weak approach to reporting in the draft. In particular, the obligation to report on take-down performance “creates even more incentives for the provider to perform a take-down on request without checking to avoid any self-blaming and -shaming in the report”.

With the lone exception of child abuse material (“child pornography”), removal of content requires a context-sensitive assessment. If a law is likely to have the effect of removing legal content, this is a restriction on freedom of speech, as laid down in the basic law, the European Convention on Human Rights and elsewhere. The provision requiring removal of “obviously illegal” content within 24 hours from the request creates an environment for the provider where it is safer to remove content quickly, if there is any doubt. The seven-day deadline for non-obviously illegal content raises similar concerns. Finally, the rather unclear rules on re-uploads, which remove a possibility to assess context, mean that automatic takedowns will result.

Professor Schulz points to references in the draft law to the E-Commerce Directive to show that the Charter of Fundamental Rights of the European Union is applicable. If the German law refers to an EU Directive, it needs to comply with the Charter. Professor Schulz also points out that the proposed measures appear to be in breach of Article 3.4 of the E-Commerce Directive.

Finally, the document details the unpredictable nature of the fines that could be imposed. The fines would be imposed by the Federal Office of Justice. There is a broad margin of appreciation as to whether a fine should be imposed or not. In case of inaction, if politically-motivated, there is limited court oversight. Even when courts are involved, the person whose content is concerned is not involved in the court proceedings.

Comments on the Draft for an Act improving Law Enforcement on Social Networks (NetzDG)
http://www.hans-bredow-institut.de/webfm_send/1178

Reckless social media law threatens freedom of expression in Germany (05.40.2017)
https://edri.org/reckless-social-media-law-threatens-freedom-expression-germany/

LIBE Opinion on amendments to Audio-Visual Media Services Directive
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2F%2FEP%2F%2FNONSGML%2BCOMPARL%2BPE-593.952%2B03%2BDOC%2BPDF%2BV0%2F%2FEN 

(Contribution by Joe McNamee, EDRi)

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