05 Oct 2017 Lvl. 2
State replied
Alert created on: 28 Apr 2017 n° 46/2017 Germany

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

Source of threatState
CategoryOther acts having chilling effects on media freedom
Partner Article 19 CPJ EFJ/IFJ IPI
Partner Article 19 CPJ EFJ/IFJ IPI
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.
13 May 2019
On 4 April 2019, the Federal Office for Justice (BFJ) announced that it was investigating a social network that had failed suppressing criminal hate speech and fake news in some 100 cases, thus showing a systematic violation of the NetzDG. The case is set for trial before the Bonn District Court. Some 1,000 complaints have been filed with the BFJ since 1 January 2018.
25 Mar 2019
On 22 March 2019, the members of the Bundestag Manuel Höferlin and Jimmy Schulz appealed to the Higher Administrative Court for North Rhine-Westphalia against the judgment of 14 February 2019 (6K 4318/18), by which the Cologne Administrative Court rejected their request to declare Germany’s incompetence to enforce data deletion by Facebook under the NetzDG.
01 Oct 2018
On 28 September 2018, Hedwig von Beverfoerde, president of the DemoFürAlle association, filed an individual constitutional complaint (1 BvR 2314/18) against the NetzDG.
05 Oct 2017
The Network Enforcement Act (NetzDG) entered in force on 1 October 2017 after having been approved by the Parliament in June.
State replies
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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