Netzwerkdurchsetzungsgesetz (“Network Enforcement Act”, NetzDG) Restricts Freedom of Speech and Hinders Prosecution
After today’s meeting with the Parliamentary Secretary Ulrich Kelber at the Ministry of Justice, the chairperson of the Amadeu Antonio Foundation, Anetta Kahane, repeated her criticism of the Network Enforcement Act, or NetzDG:
“The current draft misses the mark in its content, is legally questionable and privatizes the law. The legislation will not reduce illegal hate, but rather lead to a policy of deletion which restricts freedom of expression and hinders conscientious prosecution. For these reasons, the Foundation rejects the draft and considers it irreparable.
The goal of the act is supposedly to combat illegal expressions like racial slander, Volksverhetzung [racial incitement] and defamation. The state can accomplish this by supporting preventative efforts in our society, ensuring consistent law enforcement online and ensuring that its institutions and citizens can confront online hate and educate themselves.
Instead of rushing through half-baked legislation, the Ministry of Justice ought to sit down with representatives from civil society and social media companies. They can then bring together their diverse perspectives and work out effective strategies to combat illegal, hateful content online.”
The Primary Criticisms of the Foundation against the NetzDG Draft:
The drafted law lacks a cohesive strategy to truly address the problem of online hate speech. Hateful content is just the expression of hateful attitudes, which cannot simply be deleted. What is truly required is monitoring and research, a strengthening of digital civil society, and investment in media and internet education.
The enactment of criminal penalties online requires corresponding qualifications for police officers and public prosecutors.
The drafted law sets forth the following: should a social media user report content as illegal, corporate administrators (and not a court) must verify the report and potentially delete it: heavy fines threaten if “obviously” illegal content is not deleted within 24 hours. This is a de facto privatization of justice in a very sensitive area of free expression.
Since the corporation in question is not a court of law, capable of weighing evidence and establishing context, it will surely, when in doubt, delete all reported posts rather than risk such fines. This will unavoidably lead to the deletion of expression protected by constitutional freedom of speech. This will lead to a serious restriction of freedom of speech and expression.
The draft does not provide for the right to appeal against deletion, which is constitutionally highly questionable.
Even in the case of actual illegal content, total deletion (including all copies) is legally problematic, since it makes criminal prosecution far more difficult. The legal protection of the victim would be unreasonably restricted. In this way, the state appears to seek to shrug off its obligations.
The draft allows for deletion for offenses going far and above the problem of hate speech and which are hardly prosecuted in the modern day. This includes offenses like “Defamation of the President”. Including such outmoded offenses indicates a serious restriction of debate culture online.
The process of complaint management and law enforcement will be in no way technically improved. Even with the installation of a national contact person, the cooperation between platform administrators and prosecutors remains informal and voluntary.
Two weeks ago, the Amadeu Antonio Foundation, together with other organizations, released a “Declaration for Free Speech” against the Ministry of Justice’s then-current draft of the Network Enforcement Act. The Parliamentary State Secretary Ulrich Kelber then invited all signatories of the declaration to a roundtable discussion. The Amadeu Antonio Foundation has concerned itself with hate in social networks for years.