Netzwerkdurchsetzungsgesetz


The Network Enforcement Act is a German law aimed at combating agitation and fake news in social networks. The actual Network Enforcement Act, as Article 1, is part of the identically named Mantle Act. Article 2 of this also contains an amendment to the Telemedia Act, which affects not only social networks. The Bundestag passed the law in June 2017.
Reporters without Borders and other critics spoke of a "rush job" that "could massively damage the basic right to freedom of the press and freedom of expression". Decisions on the legality of contributions would be privatised. The UN Special Rapporteur on Freedom of Opinion criticized the planned law as endangering human rights. At a hearing in the Bundestag, almost all experts considered the draft unconstitutional. On January 1, 2018, the transitional period within which companies had to adjust to the requirements of the NetzDG expired.

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 in the ministry's opinion these were not sufficient.
The then Minister of Justice Heiko Maas argued 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 hate comments were insufficient and called for further increased pressure on the networks. In order to make companies even more accountable, legal regulations are needed. Although 90 percent of the punishable content would be deleted on YouTube, only 39 percent on Facebook and only one percent on Twitter.
The study was classified by Marc Liesching, Professor of Media Law in Munich, as an "evaluation of legal laypersons".

Advice and adoption

On May 16, 2017, the government factions of the CDU/CSU and SPD introduced the bill to the Bundestag. The first reading on May 19 showed that the draft was also controversial within the CDU/CSU and SPD. Petra Sitte warned against serious collateral damage to freedom of expression. Konstantin von Notz warned against pushing the large network providers into the role of judges. The scientific services of the German Bundestag expressed concerns in an expert opinion that the bill violates the constitution and European law.
At a hearing on the bill in the German Bundestag, eight out of ten invited experts expressed considerable concerns. Most of them saw a threat to freedom of expression. Bernd Holznagel, head of the Institute for Information, Telecommunications and Media Law at the University of Münster, explained that in order to avoid high fines, the networks may also tend to delete legal contributions. The draft was unconstitutional and would not withstand a review by the Federal Constitutional Court. Reporters Without Borders CEO Christian Mihr warned that the methods are reminiscent of autocratic states and the law creates the danger of abuse. Totalitarian governments would also follow the debate in Germany with interest at present in order to follow the draft. We must not set a precedent for censorship. Meanwhile, according to a report by the Augsburger Allgemeine, Belarusian President Alexander Lukashenko had already referred to Justice Minister Heiko Maas in his fight against the opposition in restricting freedom of expression and justified his own measures with Maas' bill.
Representatives of the CDU/CSU and SPD parliamentary groups then made changes to the draft. According to this, the service agent to be appointed by network operators in Germany must provide information within a period of 48 hours if authorities contact him about illegal content. In addition, a possibility was provided for to leave decisions in difficult cases to an "independent body", which is subordinate to the Federal Office of Justice. However, details of the structure and composition of this body remained unclear. The controversial deletion periods of 24 hours or seven days and the threat of punishment of up to 50 million euros remained.
The Bundestag passed the amended draft on 30 June 2017 with a majority of votes of the government factions against the votes of the Left and Iris Eberl from the CSU with the abstention of Alliance 90/The Greens.

Contents of the law and criticism

Draft law

In spring 2017 Maas presented the draft for a Network Enforcement Act. According to the federal government, the social networks are to be forced to remove hate speech more consistently. The draft was sharply criticized by interest groups, civil rights activists, lawyers and data protection activists.
The draft law referred to commercial social networks on the Internet with at least 2 million members, not to journalistically and editorially designed services. Providers are obliged to establish a transparent procedure for dealing with complaints about illegal content and are subject to a reporting and documentation obligation. You must check complaints immediately, delete "obviously illegal" content within 24 hours, delete any illegal content within 7 days after checking 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. In addition, providers must provide a service agent in Germany, both to the authorities and for civil proceedings. Social networks are still expected to submit a six-monthly report on complaints received and how they have been dealt with.
The draft also contained an amendment to § 14 Paragraph 2 of the Telemedia Act, which concerns the publication of users' master data. The draft law provided for the publication of data not only for the "enforcement of intellectual property rights", but also for "other absolutely protected rights". The Telemedia Act applies to far more services than just social networks.
The law should make it easier and quicker to enforce personal rights and property rights compared to online platforms. Thus, anyone wishing to assert legal claims against a user should be able to demand the surrender of master data from which the identity of the claimant can be deduced. If "for example, a person or company feels offended or inappropriately criticized by a comment in an Internet forum, they could in future not only demand that the comment be deleted from the forum operator, but also that master data be issued in order to warn the author and demand a cease-and-desist declaration". According to the critics, this would affect not only social networks but also platforms such as Amazon or eBay. According to IT lawyer Joerg Heidrich, anyone who gives a bad rating there must expect "expensive letters from lawyers". According to net activists, the draft would de facto lead "to the end of anonymity on the Internet". Critics saw "an instrument of censorship contrary to constitutional and European law", which would lead to a "real fire-fighting orgy" among providers.

Legal dispute

FDP members of the Bundestag Manuel Höferlin and Jimmy Schulz consider the Network Enforcement Act unconstitutional and want to file a "preventive declaratory action with the Cologne Administrative Court". Höferlin spoke of "censorship in its worst form - self-censorship in the mind and foreign censorship by private companies".

Criticism

According to the Federal Ministry of Justice, the social networks do not set the standard for what must be deleted or blocked. "The German penal laws alone are authoritative. The Network Enforcement Act therefore does not create any new deletion obligations. Rather, it is intended to ensure that existing law is observed and enforced." The aim of the deletion of criminal contributions by social networks is to ensure a free, open and democratic culture of communication and to protect groups and individuals affected by hate crimes. The Federal Office of Justice adds: "Regardless of the provisions of the Network Enforcement Act, anyone who distributes criminal content on the Internet will also be prosecuted. The prosecution authorities will continue to be responsible for this." These assessments and other aspects of the law have received criticism from various quarters:

Experts and journalists

SPD-related IT experts also described the planned regulations as "censorship infrastructure". Matthias Spielkamp of Reporters Without Borders called the design "shameful". Harald Martenstein of the newspaper Der Tagesspiegel called it "Erdoganism 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". Burkhard Müller-Ullrich wrote: "Minister Maas is obviously not interested in hatred and agitation in general, but in the death of his political opponents. The Committee to Protect Journalists' Courtney Radsch warned that the law would risk privatizing censorship.
Experts expect that the short and rigid deletion periods and the high threat of fines would 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, for example in the differentiation between prohibited insult and permitted satire. 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".
After the Bundestag passed the law, the German Association of Journalists called on President Frank-Walter Steinmeier, among others, not to sign the law because freedom of expression was not sufficiently protected.
The Frankfurter Allgemeine Zeitung uses the term censorship in connection with socio-political contributions by an artist that were deleted by Facebook.
The Oxford Internet Institute warned that the NetzDG may heavily restrict freedom of expression and Internet freedom.

Social Networks

Facebook considers the NetzDG draft to be incompatible with the German constitution. 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 called for a European solution and warns against "national unilateralism". The statement stated: "The amount of the fines is disproportionate to the sanctioned behaviour". In a study, the industry association Bitkom calculated costs of around 530 million euros per year that Facebook and other social networks would have to bear.

United Nations

In June 2017, the United Nations Special Representative for the Protection of Freedom of Opinion David Kaye sharply criticized the planned regulations in a statement to the Federal Government. They would overshoot the mark and burden platform operators with too many responsibilities. They are also incompatible with international human rights declarations such as the International Covenant on Civil and Political Rights.
Online providers would have to delete information partly on the basis of "vague and ambiguous" criteria. Much information can only be understood from the context in which platforms cannot evaluate themselves. High threats of fines and short inspection periods would force operators to also delete potentially legitimate content, which would lead to inappropriate interference in freedom of expression and privacy, on which at least courts or independent institutions would have to decide. Article 19 of the International Covenant on Civil and Political Rights guarantees the right to free access to and sharing of information. The restriction of these rights on the basis of vaguely defined terms such as "insult" or "defamation" is thus not compatible.
Kaye also expressed concerns about the regulation that controversial content subject to criminal prosecution and the associated user information would have to be stored and documented for an indefinite period of time, which would facilitate the state surveillance of affected persons, and the civil law claim to the disclosure of inventory data on IP addresses without a court order. The Commissioner asked the Federal Government for its opinion within 60 days.

European Commission

The European Commission keeps under lock and key documents on the Network Enforcement Act which examine the compatibility of the law with EU law with regard to the European Convention on Human Rights and the European legal requirements in the area of "Information Society Services". An inquiry by the business magazine Wirtschaftswoche was rejected, stating that "the publication of the documents... would affect the climate of mutual trust between the member state and the Commission". According to a regulation issued in 2001, the EU Commission is obliged to make internal documents available on request. Wirtschaftswoche writes: "This confirms the suspicion that the law violates EU law, but Brussels does not want to offend Germany".
EU Justice Commissioner Věra Jourová has also criticised the Network Enforcement Act as a source of annoyance to the German government.