Network Enforcement Act

The Network Enforcement Act (Netzwerkdurchsetzungsgesetz, NetzDG; German: Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken), also known as the Facebook Act (Facebook-Gesetz), 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 also contains an amendment to the Telemedia Act, which affects more than social networks. The German 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 and Expression criticised the planned law as endangering human rights. At a hearing in the Bundestag, almost all of the experts considered the draft unconstitutional.

On January 1, 2018, the transitional period expired for companies to adjust to the new law.

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 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 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.

Advice and adoption

On May 16, 2017, the government parties 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 (The Left) warned against serious collateral damage to the freedom of expression. Konstantin von Notz (The Greens) warned against pushing large network providers into the role of judges. The scientific services of the Bundestag expressed concerns in an expert opinion that the bill violates the German constitution and European Union law.

At a hearing on the bill in the Bundestag, eight of the ten invited experts expressed considerable concern; 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 to avoid high fines, networks may also tend to delete legal contributions; the draft was thus called unconstitutional and unable to 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 to follow the draft and stated that a precedent for censorship must not be set. Meanwhile, according to an Augsburger Allgemeine report, Belarusian President Alexander Lukashenko had already referred to Justice Minister Heiko Maas in his fight against the opposition in restricting freedom of expression, and he justified his own measures by Maas's bill.

Representatives of the CDU/CSU and the SPD parliamentary groups then made changes to the draft. According to them, the service agent to be appointed by network operators in Germany must provide information within 48 hours if authorities contact him about illegal content. In addition, a possibility was provided to leave decisions in difficult cases to an "independent body", to be subordinate to the Federal Office of Justice. However, details on the structure and the composition of that body remained unclear. The controversial deletion periods of 24 hours or seven days and the threat of punishment of up to 50 million euros were unchanged.

The Bundestag passed the amended draft on 30 June 2017 with most 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.

Draft law and reactions

In spring 2017, Maas presented the draft for a Network Enforcement Act (NetzDG). According to the federal government, social networks will be forced to remove hate speech more consistently. The draft was sharply criticised 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 (§ 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 still expected to submit a six-monthly report on the complaints that have been 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 social networks.

The new law aims to facilitate enforcing personal rights and property rights on online platforms. Anyone wishing to assert legal claims against a user should be able to demand the surrender of 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 critics, that would affect not only social networks but also platforms such as Amazon or eBay. According to the 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."

Legal dispute

The FDP Bundestag members 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, 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 (police/public prosecutor's office) will continue to be responsible for this". Those assessments and other aspects of the law have received criticism from various quarters:

Experts and journalists

SPD-linked 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 "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". 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 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. 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 law may heavily restrict freedom of expression and Internet freedom.

Social networks

Facebook considers the draft NetzDG 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 continued: "The amount of the fines is disproportionate to the sanctioned behaviour". In a study, the industry association Bitkom calculated costs of around €530 million per year that Facebook and other social networks would be to bear.

United Nations

In June 2017, the United Nations Special Rapporteur for the Protection of Freedom of Opinion and Expression, David Kaye, sharply criticised the planned regulations in a statement to the federal government. He considered that they would overshoot the mark and burden platform operators with too many responsibilities and that 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 be understood only from the context in which platforms cannot evaluate themselves. Heavy 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 on 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 that 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" (e-commerce directive). An inquiry by the 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 and the Commission". 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 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.