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Germany's Network Enforcement Act and its impact on social networks

The German Netzwerkdurchsetzungsgesetz (Network Enforcement Act, "NetzDG") which came into force on 1 October 2017, obliges social network providers to delete unlawful content within a short timeframe. Failure to do so is a regulatory offence which can incur considerable fines. This law will have a tangible impact on the freedom of communication in social networks.

August 2018

Who is a social network provider?

The law defines "social network provider" as a telemedia service provider operating an internet platform designed to enable users to share content with other users, or to make such content available to the public. It is not clear which services fall within the scope. Exceptions apply to platforms offering journalistic or editorial content, for which the service provider is responsible, as well as to platforms designed to enable individual communication or the dissemination of specific content. Accompanying documents to the law specifically exclude professional networks, e.g. LinkedIn, and the review section on selling platforms. The categorisation of services offering ratings, music or games is unclear and will need to be assessed on a case-by-case basis.

Content and scope of the law

The NetzDG obliges social network providers to provide a system to handle complaints about illegal content. If content is "manifestly" unlawful it has to be blocked by the social network provider within 24 hours. Other illegal content must be blocked generally within seven days of receiving a complaint. The seven day period can be extended if the user who uploaded the content is given the chance to respond to the complaint, or if a self-regulatory body is involved. Unlawful content is content which meets the threshold of certain offences of the German Criminal Code, including incitement to hatred, insult and (intentional) defamation. The law also contains a half-yearly reporting obligation and a requirement for social network providers outside Germany to have an authorised person to receive service within Germany.

Guiding principles for imposing fines

The Federal Office of Justice is authorised to monitor the compliance of social networks with the the NetzDG, and the Act contains a catalogue of provisions on regulatory fines. Notably, it is a regulatory offence if the social network provider fails to provide a system to handle complaints correctly, fails to monitor it correctly, fails to rectify an organisational deficiency or to rectify it in an appropriate amount of time. Fines can be up to EUR 5m for natural persons and up to EUR 50m for legal persons. In March 2018, the Federal Ministry of Justice published guiding principles for imposing fines on social network providers with regard to Sec. 4 NetzDG. The core criteria used to determine the amount of a fine are:

  • Size of the network: the legislator determines categories from A-D depending on the number of registered users in Germany.
  • Seriousness of the violation (slight to exceptionally serious).
  • Repeated violations.
  • Extent of cooperation of the social network provider.

A critical look at the purpose of the NetzDG

According to official notices, the Federal Office of Justice has not yet received many complaints with regard to social network providers failing to comply with the NetzDG. This leads to the strong suspicion that social network providers are removing all "unlawful content". If that is the case, one might argue that the limiting of "the brutalisation of the cultural debate" has been achieved. There is, however, also a strong suspicion that the collateral damage is to freedom of speech and communication in social networks, resulting in lawful content also being blocked. If this is happening, how legitimate are the aims of the NetzDG? A democracy has to tolerate a degree of hateful or controversial speech provided it is not unlawful. Those expressing extreme or unpopular but lawful opinions will feel misunderstood and complain about 'fake news' (Lügenpresse) and censorship. Society has to put up with extreme opinions and, in the course of freedom of expression, oppose them as part of a discourse. But that discourse is quashed if potentially unlawful content is blocked by social network providers within such a short period of time. It seems obvious that the very tight time limit on 'take down' is likely to lead to over-blocking of content. Uncertainty in the law, a long catalogue of wide ranging criminal offences which are hard for a social network to assess, considerable fines and monitoring by an administrative authority, all place pressure on the social network provider to block content in case of doubt. This is problematic as it will effectively censor content which might form an important part of the cultural debate.

Further, it is debatable whether social network providers should be the ones to assess whether or not content is lawful. Law enforcement agencies (and not social networks) are assigned to enforce criminal laws and they are also the ones competent to take legal steps against hosting providers under Article 14 of the Ecommerce Directive. In addition, social network providers can already be sued in German courts by individuals in their capacity as intermediary (Störerhaftung). Given these factors, it is, to say the least, questionable whether the NetzDG enforcement law was needed in the first place.

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Fibreoptics sending data
Johanna Spiegel

Johanna looks at Germany's controversial law which requires social network providers to delete unlawful content within a short timeframe.

"It seems obvious that the very tight time limit on 'take down' is likely to lead to over-blocking of content."