By Charlotte Mautner
When reflecting on the 2016 Munich shooting, the 2019 Halle synagogue attack and the murder of CDU politician Lübcke in 2019, one commonality becomes apparent; the perpetrators were right-wing extremists that had become radicalised with the help of the internet. In 2016 the Bundeskriminalamt (Federal Criminal Police Office, abbr. BKA) documented an unprecedented 1,698 crimes with an alt-right motivation. Accordingly the BKA president Holger Münch declared, “we are experiencing a wave of right-wing hate crimes” fueled by the internet “as a propaganda platform for extremist thought allowing the connecting of criminals”.
Fearing that unlawful content would impact the Bundestag (national parliament) election campaign in Autumn of 2017, the German government rushed to create the NetzDG. The legislation was introduced on March 27th 2017, and it was approved by parliament less than five months later, amid significant opposition. Its critics included not just its targetsFacebook, Google and Twitter, but also parties across the political spectrum like Die Linke, AfD and Bündnis 90/Die Grünen.
The Netzwerkdurchsetzungsgesetz (Network Enforcement Act), in short NetzDG, requires social network platforms with over two million users located in Germany, to provide a mechanism for users to report illegal content. Once a complaint is received, the platform must remove content that is “manifestly unlawful” within 24 hours. Other illegal content must be taken down within seven days. Failure to comply may result in fines of up to 50 million euros.
With its stringent timeframes and hefty fines it is considered the most ambitious attempt of a Western state to hold social network platforms responsible for the curtailing of online hate speech. It is the German answer to a problem that policy makers on a global scale are struggling with. Due to its pioneering approach to preventing illegal online content, it must be thoroughly explored to determine whether its far-reaching nature contravenes constitutional law. More precisely, the relationship of concerns such as over-removal and privatised enforcement with constitutional law must be explored.
Rechtsstaat is a philosophical and theoretical notion that emerged in Prussia in response to the 19th century Polizeistaat. As it is one of the most essential principles underpinning a constitutional democracy, the NetzDG must be analysed within the framework of the Rechtstaat. It may be translated as a “law-based-state”. A Rechsstaat is a state in which one may rely on the laws and their enforcement. Human dignity and citizens’ right to self-determination are acknowledged along with fundamental rights and freedom.
The notion of the Rechtsstaat, as found in the German constitution of 1949, can be understood as a regulatory reaction to the Nazi atrocities. Article 20(3) states that the “legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice”. This Article, along with Articles 1-19 are protected by the Ewigkeitsklausel of Article 79(3) according to which these provisions may never be deviated from. Aside from its legal implications, it therefore also serves as an ethical framework within politics and government. It is thus not synonymous with the more limited Anglo-American “rule of law”, but has a distinct and varied meaning. However, their evolution over time resulted in them acquiring more common characteristics. The Venice Commission, the European Commission for Democracy through Law, in the “Draft report on the rule of law” found a consensus amongst the following principles; prohibition of arbitrariness, legality, legal certainty and equality before the law.
Putting an end to arbitrariness was the initial problem that the doctrine of the Rechtsstaat seeked to solve. More precisely, the problem of “how to discipline extra-legal government power” lay at the heart of the concepts’ origin. In the ELSI case the International Court of Justice (ICJ) defined arbitrariness as “a wilful disregard of due process of law, an act which shocks or at least surprises, a sense of juridical propriety”. The Venice Commission considers arbitrariness a “gross violation of the law” which may also “result from legislation conferring excessive discretionary power”.
Legality and the supremacy of the law firstly indicates that the law must be observed. This responsibility refers likewise to individuals and authorities who must operate within the scope of powers conferred upon them. As the highest authority, all decisions and actions of officials must be sanctioned by law.
Legal certainty necessitates clear and precise legal rules that seek to keep legal implications predictable and consistent. Laws must meet standards of clarity, stability and intelligibility so that individuals can assess the legal repercussions of their conduct as well as the outcome of legal procedures with reasonable precision.
Equality before the law stipulates that everyone is subject to the same laws. No individual or group has legal privileges. Everyone must be treated equally under all laws at all levels. Officials’ application of legal norms must be unbiased and consistent across comparable situations.
Over-removal
The most widely discussed concern of the NetzDG is over-removal, whereby the large fines and short timeframes for the takedown of content could encourage blanket removals. Considerations concerning the legality of content require expertise and time to investigate a takedown on a necessary case-by-case basis. More precisely, a nuanced understanding of the German culture, language and law are required to adequately tackle the issue at hand. Examples of high-profile cases will aid in justifying the need for nuanced decision-making.
One case that exemplifies the importance of such qualities concerns a satirical tweet published by German comedian Sophie Passman reading “as long as it remains a tradition to watch Dinner for One in Germany on New Years Eve, the refugees can gladly come and ruin our culture”. Within 24 hours of the introduction of the NetzDG, the tweet had been deleted and was caught in the middle of a debate concerning social media platforms’ inadequate decisions on removal. Passman’s deleted tweet was not an isolated incident. The German satire magazine Titanic was blocked from Twitter after refusing to take down tweets that Twitter deemed to be illegal content. In their tweets, they parodied the AfD politician Beatrix von Storch, with one tweet reading, “Why does the German police use arabic numbers? Why would I dial 110 when the barbarians want to rape me!”. These examples illustrate the difficulty social media platforms have in distinguishing satire and hate speech. If platforms do not comprehend the context in which content is posted online, they reach erroneous decisions. As such, cultural sensitivity is of utmost importance to contextualise online content and adequately differentiate between parody and illegal content.
Therefore, the right to freedom of expression and access to information is at stake whereby legal content may be removed in fear of large fines, resulting in a “take-down ask later” approach. This procedure contests with the Council of Europe’s determination that the “presumption is in favour of free expression”. As such, the NetzDG’s implications of over-removal may have the opposite effect whereby the presumption is against freedom of expression in line with a feared “take-down ask later” attitude. Furthermore, the NetzDG imposes steep fines in the case of insufficient removal of illegal content within the given time frame, however does not provide legal consequences for removing more content than legally necessary. The incentive therefore, caused by the substantial fines and short removal times, to comply with the majority of complaints regardless of their merits could result in over-removal.
Privatised enforcement
A further concern of the NetzDG is privatised enforcement by which social media platforms gauge the legality of content. Critics argue that the privatised enforcement lacks judicial oversight and legitimacy, as the considerations occur independently of courts or other democratically affirmed institutions. Furthermore, the NetzDG does not provide judicial remedies in cases of wrongly removed content. Appropriate redress however is important when an individual’s right to freedom of expression or access to information has been violated. As a consequence social media platforms could develop into accountability free zones where platforms engage in removal lacking judicial competence. Reporters without Borders, for example, argued that “courts, not social media platforms should decide on the legality of content”. The outsourcing of determinations on the legality of speech shifting the responsibility for controlling illegal content from public authorities to private actors may therefore be questioned in terms of its judicial legitimacy.
The present discussion has clearly established that the NetzDG incentivizes over-removal through hefty fines, short timeframes and lack of judicial consequences for falsely removing content. Moreover, the NetzDG’s inherent privatised enforcement may be questioned as it confers judicial competences to private actors. As such, elements of the Rechtsstaatsprinzip, most notably the prohibition of arbitrariness, legal certainty, legality and equality before the law have been jeopardised by its implementation. Where social media platforms have the sole authority to remove content without consequences for falsely removing material and with the threat of heavy fines in the back of their minds, the NetzDG cannot be considered a constitutional solution to the proliferation of illegal online content.
ABOUT THE AUTHOR
In 2023 Charlotte graduated from the Vrije Universiteit with a bachelors in law. With a special interest in technology law and the future of regulating the online space she chose to focus on her home countries’ approach to tackling illegal online content.
Featured Photo Credit: Sead Mujic