In April 2017, ARTICLE 19 analysed the Draft Bill on the Improvement of Enforcement of Rights in Social Networks (the Draft Bill), which has recently been approved by the cabinet of the Federal Government of Germany. The analysis shows that the Draft Bill raises serious concerns under international human rights law, in particular the right to freedom of expression.
The Draft Bill proposes a regime for intermediary liability that incentivises, through severe administrative penalties, the removal and blocking of “clearly violating content” and “violating content”, within time periods of 24 hours and one week respectively. 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. Intermediaries are not competent to make these complex factual and legal determinations, and the Draft Bill provides no recourse to redress for users whose content is blocked or deleted unfairly pursuant to the Draft Bill.
The likelihood of Social Networks being over-vigorous in deleting or blocking content is compounded by the legal uncertainty pervading the Draft Bill. The threshold at which a Social Network’s content removal and blocking processes will be considered so inadequate that it attracts administrative liability is unclear. Together with ambiguities in the definitions of key terms (including of “Social Network”), this is likely to create an environment wherein lawful content is routinely blocked or removed as a precautionary measure. The limited oversight provided by the Administrative Courts does nothing to address the risk of over-blocking, and provides little protection or due process to Social Networks that, in good faith, refrain from blocking or removing content in the interests of respecting freedom of expression.
While the Draft Bill does not create new content restrictions, it compels private companies to remove or block content on the basis of the German Criminal Code, specifying a series of provisions that clearly contradict international human rights law. This includes criminal prohibitions on “defamation of religions” (blasphemy), defamation of the President of the Federation, criminal defamation and insult, denial of National Socialist-era crimes, among others. While these provisions are rarely applied in Germany, the prospect of censorship on these bases expanding under the control of private actors is deeply troubling.
Amendments to the Telemedia Act, proposed in the Draft Bill, are also concerning, as they will significantly widen the bases by which law enforcement authorities are able to request user data from intermediaries without requiring a court order.
ARTICLE 19 is also concerned that the Draft Bill sets a dangerous example to countries that more vigorously enforce criminal laws against legitimate expression, who are also seeking to further enlist private companies in these efforts.
Summary of recommendations
- The Draft Bill should be withdrawn, with consideration given to retaining Section 2 on reporting requirements in alternative legislation to increase transparency around online content moderation;
- The German Criminal Code should be comprehensively revised to remove offences that are not compatible with international human rights law on freedom of expression;
- The Telemedia Act should be revised to ensure that any requests from law enforcement authorities to intermediaries for user data is made on the basis of a court order.