Network Enforcement Act

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The Network Enforcement Act (Netzwerkdurchsetzungsgesetz, NetzDG; German : Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken), also known colloquially as the Facebook Act (Facebook-Gesetz), [1] is a German law that was passed in the Bundestag in 2017 that officially aims to combat fake news, hate speech and misinformation online. [2]

Contents

The Act obliges social media platforms with over 2 million users to remove "clearly illegal" content within 24 hours and all illegal content within 7 days of it being posted, or face a maximum fine of 50 million Euros. The deleted content must be stored for at least 10 weeks afterwards, and platforms must submit transparency reports on dealing with illegal content every six months. [3] It was passed by the Bundestag in June 2017 and took full effect in January 2018.

The law has been criticised both locally and internationally by politicians, human rights groups, journalists and academics for incentivising social media platforms to pre-emptively censor valid and lawful expression, and making them the arbiter of what constitutes free expression and curtailing freedom of speech in Germany. [4]

An evaluation ordered by the German Ministry of Justice and executed by Berkeley and Cambridge scientists came to the conclusion that the law has led to a "significant improvement in complaints management and public accountability of network providers in dealing with designated illegal content" while specifying a range of tasks to be tackled like ascertainments in wording. [5]

Background

In 2015, the Federal Ministry of Justice and Consumer Protection set up a working group on the handling of criminal content in social networks. Some networks made voluntary commitments, but the ministry considered them insufficient.

Justice Minister Heiko Maas combated that an evaluation of legal practice in the deletion of criminal content in social networks by "jugendschutz.net" in early 2017 revealed that deletions of hateful comments were insufficient, and he called for further increased pressure on social networks. To make companies more accountable, he considered that legal regulations were needed. Although 90 percent of the punishable content was deleted on YouTube, it was only 39 percent on Facebook and only 1 percent on Twitter.

Drafting and enactment

On May 16, 2017, the government parties CDU/CSU and SPD introduced the bill to the Bundestag. According to the federal government, social networks would be forced to remove hate speech more consistently. The maximum penalty for a failure to abide by the law would be 50 million Euros. [6]

The draft law referred to commercial social networks on the Internet with at least 2 million members, not to journalistically- and editorially-designed services (§ 1 NetzDG). Providers must establish a transparent procedure for dealing with complaints about illegal content (§ 3 NetzDG) and are subject to a reporting and documentation obligation (§ 2 NetzDG). They must check complaints immediately, delete "obviously illegal" content within 24 hours, delete any illegal content within 7 days it has been checked and block access to it. Complainants and users must be informed immediately of the decisions taken. The deleted content must be stored for at least ten weeks for evidence purposes. Violations are considered administrative offences for which sensitive fines of up to 5 million euros are provided (§ 4 NetzDG). In addition, providers must provide a service agent in Germany both to the authorities and for civil proceedings (§ 5 NetzDG). Social networks are expected to submit a report every six months on the complaints that have been received and how they have been dealt with. [6]

However, the first reading on May 19 showed that the draft was controversial within the CDU/CSU and SPD. Representatives of the CDU/CSU and the SPD parliamentary groups made changes to the draft. The Bundestag passed the amended draft on 30 June 2017 with most votes of the government factions against the votes of the Left and the CSU, with the abstention of Alliance 90/The Greens. [6]

Criticism

According to the Federal government of Germany, the law is necessary to combat an increasing spread of hate speech online, as well as defamation and fake news. [7] Such content may radicalise individuals, and "the internet shapes the culture of debate and the overall social climate" in Germany. Previous attempts to raise awareness and set voluntary commitments for platforms have had limited success. However, various aspects of the law have been criticised by multiple interest groups.

Human rights and journalist groups

Reporters Without Borders (RSF) stated that the Act could "massively damage the basic rights to freedom of the press and freedom of expression." [8] The Human Rights Watch has called the law "flawed", stating it could lead to unaccountable, overbroad censorship. It added that the law will set a dangerous precedent for other governments that also wishes to restrict online speech by forcing companies to censor on its behalf. [4] Indeed, the RSF also noted that Germany's law had also influenced Russia's implementation of its own hate speech law. [9]

The Committee to Protect Journalists' Courtney Radsch warned that the law would risk privatizing censorship. [10] The Oxford Internet Institute warned that the law may heavily restrict freedom of expression and Internet freedom. [11]

IT experts also described the planned regulations as "censorship infrastructure". [12] Journalists that criticized the law include Matthias Spielkamp of RSF, who called the design "shameful". [13] Harald Martenstein of the newspaper Der Tagesspiegel called it "Erdoğanism in pure culture" and explained that the draft law reads as if "it came from the 1984 novel" that it was an "attack on the principle of the separation of powers". [14]

Academics and experts also expect the short and rigid deletion periods and the high threat of fines to lead the networks to prefer to remove contributions in case of doubt, even if the freedom of expression guaranteed by fundamental rights would require a context-related consideration, such as in the differentiation between prohibited insult and permitted satire. [15] In April 2017, an alliance of business associations, network politicians, civil rights activists, scientists and lawyers joined forces to protest against the law. In a manifesto, they warned of "catastrophic consequences for freedom of expression". [16] [17] [18]

United Nations

In June 2017, the United Nations Special Rapporteur for the Protection of Freedom of Opinion and Expression, David Kaye, criticised the planned regulations in a statement to the federal government. He considered that some parts of the draft law would be incompatible with the International Covenant on Civil and Political Rights. [19] He raised the following concerns:

Kaye also expressed concerns that "violative content" and its associated user information would have to be stored on private servers and could be accessed by court orders, which may undermine the right to anonymous expression. Furthermore, the Act would burden private companies with protecting the privacy and security of large amounts of private data.

Council of Europe

Experts argue that the law may violate freedom of expression as enumerated in Article 5 of German Basic Law, as well as in Article 10 of the European Convention on Human Rights, which states the following: [20]

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. [21] 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." [21]

The Network Enforcement Act incentivizes over-blocking, because it allows citizens and tech companies to make judgement on questionable speech immediately by blocking it within 24 hours, instead of allowing it to propagate or cause harm while waiting for a court's decision. This necessity of speed in removal makes it difficult for people posting such content to have due process in determining the content's legality. [20] [22] Over-blocking could be a violation of Article 10 because there is potential to block speech that is lawful. Some scholars say that prioritizing Germany's laws over EU regulations while legislating on this subject of increasing importance is a mistake, and that the EU should be the one to legislate in such realms, especially since the internet is such an international place. [20] [23]

Counter Extremism Project – CEPS Report

In 2018, the advocacy group Counter Extremism Project published a joint report with the think tank Centre for European Policy Studies analysing the effects of the Network Enforcement Act. The authors concluded it "remains uncertain whether NetzDG has achieved significant results in reaching its stated goal of preventing hate speech" as some platforms did not strictly comply with the requirements. [24] [25]

European Commission's silence

The European Commission has refused to review the documents on the law that examines the compatibility of the law with European Union law with regard to the European Convention on Human Rights (ECHR) and the European legal requirements in the area of "Information Society Services" (e-commerce directive). An inquiry by the German business magazine Wirtschaftswoche was rejected on the grounds that "the publication of the documents... would affect the climate of mutual trust between the member state (Germany) and the Commission". [26]

According to a regulation issued in 2001, the EU Commission must make internal documents available on request. Wirtschaftswoche wrote: "This confirms the suspicion that the law does indeed violate EU law, but Brussels does not want to offend Germany". [26] [27]

Impacts

Facebook fine for underreporting complaints

In July 2019, Facebook was fined 2 million Euros by Germany's Federal Office of Justice for under-reporting complaints about illegal content. [28] According to Germany's Federal Office of Justice, Facebook did not include user reports that posts violated community standards. However, Facebook claimed that aspects of the law "lacked clarity" and it did comply with mandatory reporting requirements.

Facebook has criticised the draft law. In a statement sent to the German Bundestag at the end of May 2017, the company stated: "The constitutional state must not pass on its own shortcomings and responsibility to private companies. Preventing and combating hate speech and false reports is a public task from which the state must not escape". In its statement, Facebook claimed "The amount of the fines is disproportionate to the sanctioned behaviour". [29] [30]

Google lawsuit

In 2021, Google filed a lawsuit against the law. [31]

See also

Related Research Articles

Hate speech is a term with varied meaning and has no single, consistent definition. It is defined by the Cambridge Dictionary as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". The Encyclopedia of the American Constitution states that hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation". There is no single definition of what constitutes "hate" or "disparagement". Legal definitions of hate speech vary from country to country.

Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic media, especially published materials, should be considered a right to be exercised freely. Such freedom implies the absence of interference from an overreaching state; its preservation may be sought through a constitution or other legal protection and security. It is in opposition to paid press, where communities, police organizations, and governments are paid for their copyrights.

<span class="mw-page-title-main">Freedom of information</span> Freedom of a person or people to publish and consume information

Freedom of information is freedom of a person or people to publish and have access to information. Access to information is the ability for an individual to seek, receive and impart information effectively. As articulated by UNESCO, it encompasses

"scientific, indigenous, and traditional knowledge; freedom of information, building of open knowledge resources, including open Internet and open standards, and open access and availability of data; preservation of digital heritage; respect for cultural and linguistic diversity, such as fostering access to local content in accessible languages; quality education for all, including lifelong and e-learning; diffusion of new media and information literacy and skills, and social inclusion online, including addressing inequalities based on skills, education, gender, age, race, ethnicity, and accessibility by those with disabilities; and the development of connectivity and affordable ICTs, including mobile, the Internet, and broadband infrastructures".

Germany has taken many forms throughout the history of censorship in the country. Various regimes have restricted the press, cinema, literature, and other entertainment venues. In contemporary Germany, the Grundgesetz generally guarantees freedom of press, speech, and opinion.

<span class="mw-page-title-main">Internet censorship</span> Legal control of the internet

Internet censorship is the legal control or suppression of what can be accessed, published, or viewed on the Internet. Censorship is most often applied to specific internet domains but exceptionally may extend to all Internet resources located outside the jurisdiction of the censoring state. Internet censorship may also put restrictions on what information can be made internet accessible. Organizations providing internet access – such as schools and libraries – may choose to preclude access to material that they consider undesirable, offensive, age-inappropriate or even illegal, and regard this as ethical behavior rather than censorship. Individuals and organizations may engage in self-censorship of material they publish, for moral, religious, or business reasons, to conform to societal norms, political views, due to intimidation, or out of fear of legal or other consequences.

<span class="mw-page-title-main">Freedom of speech by country</span>

Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of censorship or punishment. "Speech" is not limited to public speaking and is generally taken to include other forms of expression. The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless, the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms and there are different approaches to issues such as hate speech, obscenity, and defamation laws.

<span class="mw-page-title-main">Freedom of speech</span> Right to communicate ones opinions and ideas

Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recognised as a human right in the Universal Declaration of Human Rights and international human rights law by the United Nations. Many countries have constitutional law that protects free speech. Terms like free speech, freedom of speech, and freedom of expression are used interchangeably in political discourse. However, in a legal sense, the freedom of expression includes any activity of seeking, receiving, and imparting information or ideas, regardless of the medium used.

<span class="mw-page-title-main">Internet censorship in Germany</span>

Internet censorship in Germany is practised directly and indirectly through various laws and court decisions. German law provides for freedom of speech and press with several exceptions, including what The Guardian has called "some of the world's toughest laws around hate speech". An example of content censored by law is the removal of web sites from Google search results that deny the holocaust, which is a felony under German law. According to the Google Transparency Report, the German government is frequently one of the most active in requesting user data after the United States. However, in Freedom House's Freedom On the Net 2022 Report, Germany was rated the eighth most free of the 70 countries rated.

Facebook is a social networking service that has been gradually replacing traditional media channels since 2010. Facebook has limited moderation of the content posted to its site. Because the site indiscriminately displays material publicly posted by users, Facebook can, in effect, threaten oppressive governments. Facebook can simultaneously propagate fake news, hate speech, and misinformation, thereby undermining the credibility of online platforms and social media.

<span class="mw-page-title-main">Internet censorship in South Korea</span>

Internet censorship in South Korea is prevalent, and contains some unique elements such as the blocking of pro-North Korea websites, and to a lesser extent, Japanese websites, which led to it being categorized as "pervasive" in the conflict/security area by OpenNet Initiative. South Korea is also one of the few developed countries where pornography is largely illegal, with the exception of social media websites which are a common source of legal pornography in the country. Any and all material deemed "harmful" or subversive by the state is censored. The country also has a "cyber defamation law", which allow the police to crack down on comments deemed "hateful" without any reports from victims, with citizens being sentenced for such offenses.

There is medium internet censorship in France, including limited filtering of child pornography, laws against websites that promote terrorism or racial hatred, and attempts to protect copyright. The "Freedom on the Net" report by Freedom House has consistently listed France as a country with Internet freedom. Its global ranking was 6 in 2013 and 12 in 2017. A sharp decline in its score, second only to Libya was noted in 2015 and attributed to "problematic policies adopted in the aftermath of the Charlie Hebdo terrorist attack, such as restrictions on content that could be seen as 'apology for terrorism,' prosecutions of users, and significantly increased surveillance."

<span class="mw-page-title-main">Heiko Maas</span> German politician (born 1966)

Heiko Josef Maas is a German lawyer and former politician of the Social Democratic Party (SPD) who served as the Federal Minister of Foreign Affairs (2018–2021) and as the Federal Minister of Justice and Consumer Protection (2013–2018) in the cabinet of Chancellor Angela Merkel. Since 2022, he has been practicing as a lawyer.

<span class="mw-page-title-main">Media freedom in the European Union</span>

Media freedom in the European Union is a fundamental right that applies to all member states of the European Union and its citizens, as defined in the EU Charter of Fundamental Rights as well as the European Convention on Human Rights. Within the EU enlargement process, guaranteeing media freedom is named a "key indicator of a country's readiness to become part of the EU".

<span class="mw-page-title-main">Censorship by Facebook</span>

Facebook has been involved in multiple controversies involving censorship of content, removing or omitting information from its services in order to comply with company policies, legal demands, and government censorship laws.

Online hate speech is a type of speech that takes place online with the purpose of attacking a person or a group based on their race, religion, ethnic origin, sexual orientation, disability, and/or gender. Online hate speech is not easily defined, but can be recognized by the degrading or dehumanizing function it serves.

<span class="mw-page-title-main">Deplatforming</span> Administrative or political action to deny access to a platform to express opinions

Deplatforming, also called no-platforming, is a form of Internet censorship of an individual or group by preventing them from posting on the platforms they use to share their information/ideas. This typically involves suspension, outright bans, or reducing spread.

<span class="mw-page-title-main">Internet censorship and surveillance in Europe</span>

This list of Internet censorship and surveillance in Europe provides information on the types and levels of Internet censorship and surveillance that is occurring in countries in Europe.

<span class="mw-page-title-main">Law against Hatred</span>

The Constitutional Law Against Hatred, for Peaceful Coexistence and Tolerance, also known simply as the Law Against Hatred, is a law passed unanimously by the Venezuelan Constituent National Assembly and published in Gaceta Oficial 41,274 on 8 November 2017.

<span class="mw-page-title-main">Digital Services Act</span> European Union regulation on digital services content

The Digital Services Act (DSA) is an EU regulation adopted in 2022 that addresses illegal content, transparent advertising and disinformation. It updates the Electronic Commerce Directive 2000 in EU law, and was proposed alongside the Digital Markets Act (DMA).

The Avia Law, a law of 24 June 2020 aimed at combating hateful content on the internet, was a law of France whose initial content was largely challenged by the Constitutional Council, but some provisions were retained, such as the creation of a specialized public prosecutor's office and an Observatory of Online Hate attached to the Arcom.

References

  1. ↑ Schedelbeck, Paul; Harner, Miriam; Körber, Jasmin (2 January 2018). ""Facebook-Gesetz": Ein Gesetz, das die Freiheit im Netz beschneiden könnte". Puls (in German). Bayerischer Rundfunk. Archived from the original on 11 January 2021. Retrieved 14 August 2020.
  2. ↑ Knight, Ben (1 January 2018). "Germany implements new internet hate speech crackdown". DW. Archived from the original on 22 November 2018. Retrieved 22 November 2018.
  3. ↑ Sugandha Lahoti (3 July 2019). "Facebook fined $2.3 million by Germany for providing incomplete information about hate speech content". Packt Hub. Archived from the original on 2 September 2024. Retrieved 11 January 2022.
  4. 1 2 "Germany: Flawed Social Media Law". Human Rights Watch. 14 February 2018. Archived from the original on 11 January 2022. Retrieved 11 January 2022.
  5. ↑ https://www.bmj.de/SharedDocs/Downloads/DE/News/PM/090920_Juristisches_Gutachten_Netz.pdf?__blob=publicationFile&v=1 Archived 24 April 2023 at the Wayback Machine [ bare URL ]
  6. 1 2 3 "Netzwerkdurchsetzungsgesetz". Bundesministerium der Justiz (in German). Archived from the original on 30 June 2022. Retrieved 30 June 2022.
  7. ↑ Answers to the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in regard to the Network Enforcement Act (PDF). Federal Government of Germany. 2017. Archived (PDF) from the original on 11 January 2022. Retrieved 11 January 2022.
  8. ↑ "Guardian News and Media Written Evidence". House of Lords Communications and Digital Committee inquiry into Freedom of Expression Online. January 2021. Archived from the original on 30 December 2021. Retrieved 30 December 2021.
  9. ↑ "Russian bill is copy-and-paste of Germany's hate speech law | RSF". rsf.org. 19 July 2017. Archived from the original on 1 July 2022. Retrieved 30 June 2022.
  10. ↑ Avenue, Committee to Protect Journalists 330 7th; York, 11th Floor New; Ny 10001 (20 April 2017). "Proposed German legislation threatens broad internet censorship". cpj.org. Archived from the original on 11 April 2019. Retrieved 6 November 2019.{{cite web}}: CS1 maint: numeric names: authors list (link)
  11. ↑ Neudert, Lisa-Maria (2018). "Germany: A Cautionary Tale". Computational Propaganda: Political Parties, Politicians, and Political Manipulation on Social Media. Oxford University Press. pp. 153–185. ISBN   978-0190931414.
  12. ↑ "Zensur befürchtet: SPD-naher Verein zerreißt Maas' Facebook-Gesetz – heute-Nachrichten". Heute.de (in German). 23 June 2018. Archived from the original on 31 March 2017. Retrieved 30 June 2022.
  13. ↑ Spielkamp, Matthias (2019). "Community Standards + KI + Beirat = Informationsfreiheit weltweit?". AlgorithmWatch (in German). Archived from the original on 12 May 2022. Retrieved 30 June 2022.
  14. ↑ Martenstein, Harald (19 March 2017). "Erdoganismus in Reinkultur". Der Tagesspiegel Online (in German). Archived from the original on 2 September 2024. Retrieved 30 June 2022.
  15. ↑ "Hass im Netz: Wirtschaft und Aktivisten verbünden sich gegen Maas-Gesetz". Spiegel Online. 11 April 2017. Archived from the original on 30 June 2022. Retrieved 14 January 2018.
  16. ↑ ""Deklaration für die Meinungsfreiheit" gegen Gesetz von Heiko Maas". Tagesspiegel. 11 April 2017. Archived from the original on 2 September 2024. Retrieved 14 January 2018.
  17. ↑ Patrick Beuth (11 April 2017). "Heiko Maas: Breites Bündnis gegen das Facebookgesetz". Die Zeit. Archived from the original on 4 November 2021. Retrieved 14 January 2018.
  18. ↑ Nadin Rabaa, Jan Petter (5 January 2018). "NetzDG: Meinungsfreiheit, Zensur – was das umstrittene Gesetz bedeutet". Bento (in German). Der Spiegel. Archived from the original on 30 June 2022. Retrieved 20 January 2021.
  19. ↑ "Mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression" (PDF). Archived (PDF) from the original on 2 September 2024. Retrieved 6 November 2019.
  20. 1 2 3 Imara., McMillan (2019). Enforcement through the Network: The Network Enforcement Act and Article 10 of the European Convention on Human Rights (Comment). OCLC   1145120681. Archived from the original on 2 September 2024. Retrieved 31 March 2022.
  21. 1 2 "European Convention On Human Rights", European Convention on Human Rights : Commentary, Bloomsbury Academic, 2013, doi:10.5040/9781472561725.0036, ISBN   978-1-8494-6191-7, archived from the original on 2 September 2024, retrieved 18 October 2021
  22. ↑ Kreimer, Seth F. (1 November 2006). "Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link". University of Pennsylvania Law Review. 155 (1): 11–101. doi:10.2307/40041302. ISSN   0041-9907. JSTOR   40041302. S2CID   153620561. Archived from the original on 2 September 2024. Retrieved 31 March 2022.
  23. ↑ Claussen, Victor (18 October 2021). "Fighting hate speech and fake news. The Network Enforcement Act (NetzDG) in Germany in the context of European legislation". Rivista di Diritto dei Media. Archived from the original on 18 March 2022. Retrieved 31 March 2022.
  24. ↑ "ICYMI: New Report on Germany's NetzDG Online Hate Speech Law Shows No Threat of Over-Blocking". Counter Extremism Project. Archived from the original on 11 January 2022. Retrieved 11 January 2022.
  25. ↑ Echikson, William; Knodt, Olivia (2018). Germany's NetzDG: A key test for combatting online hate (PDF). Centre for European Policy Studies. Archived (PDF) from the original on 2 September 2024. Retrieved 11 January 2022.
  26. 1 2 Silke Wettach: Facebook-Gesetz: EU-Kommission hält Dokumente zurück „Veröffentlichung würde das Klima des gegenseitigen Vertrauens beeinträchtigen“. Archived 28 August 2022 at the Wayback Machine In: WirtschaftsWoche, 10. November 2017.
  27. ↑ Markus Reuter: EU-Kommission hält Dokumente zum Facebook-Gesetz zurück. Archived 27 November 2022 at the Wayback Machine In: Netzpolitik.org, 10. November 2017.
  28. ↑ Escritt, Thomas (2 July 2019). "Germany fines Facebook for under-reporting complaints". Reuters. Archived from the original on 11 January 2022. Retrieved 11 January 2022.
  29. ↑ Kurz, Constanze (29 May 2017). "Facebook lehnt das NetzDG ab: Unbestimmt, unwirksam und verfassungswidrig". Netzpolitik (in German). Archived from the original on 15 August 2020. Retrieved 14 August 2020.
  30. ↑ Sugandha Lahoti (3 July 2019). "Facebook fined $2.3 million by Germany for providing incomplete information about hate speech content". Packt Hub. Archived from the original on 7 December 2020. Retrieved 14 August 2020.
  31. ↑ "Google takes legal action over Germany's expanded hate-speech law". Reuters. 27 July 2021. Archived from the original on 30 June 2022. Retrieved 30 June 2022.
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