On 5 April 2017, the German Federal Minister of Justice’s new bill aimed at improving enforcement of rights in social networks (Entwurf eines Gesetzes zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken; Netzwerkdurchsetzungsgesetz – NetzDG, the Bill; see our previous blog) has, in a slightly revised version, been adopted by the Federal Cabinet (Bundeskabinett) and is now ready for discussion by the German Parliament.

As we reported earlier, a number of concerns surrounding the Bill were raised after its announcement. Now, as an immediate response to the Federal Cabinet’s adoption of the Bill, a number of stakeholders – including industry associations, net activists, lawyers and journalists – have formed an alliance to oppose the Bill. The alliance has issued a joint ‘Declaration on Freedom of Expression’ (Declaration), which is available in the English language here.

  • The Declaration emphasizes the essential role of the freedom of expression, which is a fundamental right under Article 5(1) of the German Constitution (Grundgesetz).
  • Notwithstanding this, the Declaration acknowledges that it is important to effectively sanction criminal and illegal content.
  • The Declaration stresses that each individual’s fundamental right of freedom of expression shall not be affected by the existence of unlawful or criminal content being dealt with, which shall in particular be the case in relation to content which is in a gray area. The Bill would create a risk that social networks would, in order to avoid any exposure to fines under the Bill, decide to utilize a “fall-back” position, i.e. to delete content in cases of doubt.
  • In the view of the signatories to the Declaration, the Bill does not meet the requirements necessary to adequately protect the freedom of expression, and the government should instead pursue a comprehensive political strategy to curb the proliferation of hate speech and fake news on the internet.

We expect a highly heated debate in the German Parliament, and, at the same time, an equally animated discussion in political, financial and legal circles.