Reckless social media law threatens freedom of expression in Germany

At the end of March 2017, with Federal elections on the horizon, the German Justice Minister Heiko Maas proposed a law on ill-defined “social networks”.

Minister Maas has proposed the law which places a variety of obligations on the companies, in the apparent hope that this will lead profit-motivated companies to take over private censorship measures. Following years of deletions of perfectly legal content by, for example, Facebook, Minister Maas seems to believe that this will lead to outcomes that are appropriate in a democratic society based on the rule of law.

In short, the law, in the absence of any real evidence to suggest that this is the case, appears to be based on a vague hope that a number of coincidences will happen, as a result of the law being adopted. In particular:

• the hoped-for responses that the private (often foreign) companies will not be counter-productive (by allowing extremists gain support by portraying themselves as victims of censorship, for example);
• the hoped-for responses of the private companies will not lead to unpredictable restrictions of freedom of expression, contrary to the Charter of Fundamental Rights of the European Union (Article 52.1), the European Convention on Human Rights (Article 10.2), the International Covenant on Civil and Political Rights (Article 19), etc;
• the hoped-for responses of the private companies will achieve the above results in a durable way, despite the ever-changing nature of online communications;
• the companies will make appropriate choices with regard to the data protection rights of individuals whose content they delete and whose personal data they share with complainants;
• that, by extraordinary coincidence, it is (as required by international law) necessary and proportionate to address 24 very diverse offences (civil and criminal) in the proposed measures, in the hope that the impact will be identical.

The law would require social networks to offer users “an easily recognisable, immediately accessible and always available process for registering complaints about illegal content”. Platforms could be heavily fined if they fail to remove notified content from their sites within 24 hours – or up to seven days for less clear-cut cases. Obviously, the companies will use their terms of service to delete content and avoid risk. Minister Maas appears to hope that they will do so in the easiest way (by deleting legal content) and will assess each of the complaints on its merits.

The draft network enforcement law (“Netzwerkdurchsetzungsgesetz”), initially claimed to be a measure to fight hate speech and “fake news”, is now broadened to include pornographic content and many other offences. What is worse, the new draft law also contains a clause requiring social networks to retain and make individuals’ personal data available. There is, of course, no obligation on the German state to take any action whatsoever or use that data, even in cases of dangerous criminal activity, despite Minister Maas’ assertions that the problem(s) being addressed are so serious that the law needs to be rushed through before the elections, generating positive headlines for himself.

A provision on upload filters for the prevention of the re-uploading of notified content has been removed from the initial draft, probably because this is contrary to existing EU law (E-Commerce Directive, Article 15). However, the proposal still contains the possibility to establish content filters to identify and delete already existing content.

EDRi-member Digitale Gesellschaft harshly criticised the fact that the draft law turns social networks into an unpredictable, profit-motivated police force of the internet and privatises law enforcement. The expansion of the criminal catalogue and the inclusion of the possibility to request personal data of private individuals further intensifies the damage to freedom of expression. Moreover, the organisation warned against the introduction of “real-name policies” (or more active enforcement of such policies) through the legislative backdoor.

In Germany, every request to disclose the identity of a user requires two legal bases – one granting the right to information and one authorising the handing over of the information. While the German Telemedia Act (§ 14, TMG) regulates disclosure, the Federal Court deduces the right to information from the principle of good faith in case of violations of personality rights. Critics fear that if the new law introduces a binding clause in the Telemedia Act, the path for information inquiries is open to everybody. German citizens have suffered for years from excessive access to personal data under the transposition of the EU’s Intellectual Property Rights Enforcement Directive (IPRED), which has been used to coerce individuals that are accused of copyright infringements to either pay or face lengthy and costly court cases.

The proposed new law means that anybody – under the pretext of violation of personal rights and without the intervention of a judge – could potentially make inquiries about the identity of internet users. This would lead to a chilling effect and thus to considerable restrictions of the freedom of expression and communication as well as increased threats to whistleblowers. In addition, access to personal data of individuals would make it very easy to abuse the law for other forms of hate crimes. Users could, for example, request access to home addresses. Since no court nor prosecutor has to check whether an infringement on personal rights has been reported, the online service is made responsible for the assessment whether to hand the information over or not.

Another addition to the draft law is a procedure to prohibit the distribution of pornography. The effects on group chats, such as WhatsApp which might also be affected by the law, depending on the scope, will be interesting as partially public exchanges of legal content such as pornography would suddenly become the focus of deletions.

In total, 24 criminal offences have been added to the latest draft, including counterfeiting and fake news for the purpose of treason against the nation, defamation of the state and its symbols, as well as insults to the Federal President.

Finally, the draft was criticised for its bad definition of “social networks”, which in case of doubt could also include e-mail platforms and other services. The latest draft mentions a user threshold of two million, which is open to interpretation. The question arises whether many other platforms would fall under the new regulation if unregistered users who simply visit a site are taken as a basis for the definition.

It is also unusual in the legislative process that the opinions of organisations have not been sought. Finally, the legislative process is now being fast-tracked, ignoring the public consultation phase, as the Ministry of Justice already hastily notified the EU Commission of the draft without waiting for the passing of the deadline for submissions.

German hate speech law: The scope is broadened before its adoption (only in German, 29.03.2017)
https://netzpolitik.org/2017/hate-speech-gesetz-schon-ausgeweitet-bevor-es-in-kraft-tritt/

Terrorism, Pornography, treacherous counterfeiting: German Ministry of Justice broadens the draft network enforcement law drastically (only in German, 28.03.2017)
https://digitalegesellschaft.de/2017/03/ausweitung-entwurf-netzdg/

Draft network enforcement law (only in German)
http://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/RegE_NetzDG.pdf?__blob=publicationFile&v=2

Parliamentary question on how the German state deals with hate speech (only in German, 14.10.2016) http://andrej-hunko.de/start/download/doc_download/863-schriftliche-frage-zur-groessenordnung-der-100-000-von-facebook-geloeschten-internetinhalte
(Translation is part of a blogpost, available at https://edri.org/edri-awards-2016/)

(Contribution by Kirsten Fiedler and Joe McNamee, EDRi)