Germany: Draft Bill on Social Networks Raises Serious Free Expression Concerns

Update: 05 Oct 2017 State replied
Year 28 Apr 2017 Country Germany Category E. Other acts having chilling effects on media freedom Source of threat State Partner Article 19 , CPJ , EFJ/IFJ , IPI Alert level Level 2
28 Apr 2017 Germany E. Other acts having chilling effects on media freedom State Article 19 , CPJ , EFJ/IFJ , IPI Level 2

On 5 April 2017, the German Cabinet approved the Draft Bill on the Improvement of Enforcement of Rights in Social Networks. The stated aim of the bill is to combat hate speech and disinformation online; however, human rights and internet freedom organisations have expressed concern that it would enable disproportionate censorship online. The Bill is now due to be debated by Parliament. The Draft Bill proposes a system, whereby ‘Social Networks’ would face severe administrative penalties (fines) for failing to remove content that violates 24 already-existing provisions of the German Criminal Code – including offences as varied as “defamation of religions” (blasphemy), defamation of the President of the Federation, criminal defamation and insult, and denial of National Socialist-era crimes, among others. This obligation applies without a determination of the legality of the content at issue by a court, and with no guidance to Social Networks on respecting the right to freedom of expression. Critics of the Bill argue that intermediaries are not competent to make these complex factual and legal determinations, and that the Draft Bill provides no recourse to redress for users whose content is blocked or deleted unfairly pursuant to the Draft Bill. Critics further argue that there is a high likelihood of Social Networks over-vigorously deleting or blocking content, due to the legal uncertainty pervading the Draft Bill. This includes ambiguities in the term ‘Social Network’, meaning a number of online media could be affected; and an unclear threshold for determining whether a social network’s response to illegal content is “inadequate’ and therefore should incur penalties.

Updates

05 Oct 2017 : The Network Enforcement Act entered in force on 1 October after having been approved by the Parliament in June.

State replies

Follow-ups

05 Oct 2017 : OSCE Representative on Freedom of the Media warns Germany social networks law could have disproportionate effect.
26 Sep 2017 : The CoE Commissioner for Human Rights recalls that any restrictions on access to Internet content should be based on a clear and predictable framework affording guarantee of judicial oversight to prevent possible abuses.
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