Hate speech and fake news are demons of our digital era, but under German law, hosting providers such as Facebook, are not required to monitor or actively search for hate speech in the content they make available. Providers are only liable for content they make available from the time they become aware of unlawful posts (§ 10 of the German Telemedia Act (Telemediengesetz)) and even then, they are often said to be reluctant to delete the content.
To urge social networks to process complaints, particularly about hate crimes, more speedily and more extensively, the Bundeskabinett (German federal cabinet) recently adopted a bill to improve the enforcement of rights on social networks; the bill s known as the Network Enforcement Act (Netzwerkdurchsetzungsgesetz).
Whom does the Act affect?
The Network Enforcement Act applies to "telemedia service providers who in pursuit of financial gain operate platforms on the internet that allow users to exchange and share any kind of content with other users or make content available to the public". Further, it only applies to platforms with two million or more users registered in Germany; smaller social networks are not supposed to be burdened with extensive monitoring duties.
What duties are imposed?
The bill requires providers to draft and publish a quarterly report (in German) on how they handle user complaints about unlawful content and explain provider’s efforts to prevent smear campaigns and hate speech.
In dealing with user complaints, networks must essentially take three steps:
- Acknowledge the complaint without delay to assess whether the content is unlawful and must be removed.
- Delete clearly unlawful content within 24 hours of the receipt of the complaint. Content is clearly unlawful if no in-depth examination is necessary in order to determine criminal liability. Delete content that is not clearly unlawful within seven days. Save removed content for evidentiary purposes and store it in Germany.
- Inform both the affected person and the user whose content was deleted of the decision, stating reasons.
According to the Network Enforcement Act, unlawful content includes certain criminal offences set out in the German Criminal Code (Strafgesetzbuch), such as insult, defamation, slander and public incitement to commit crimes and sedition. The duty to delete content does not apply to all violations of law, but only to those violations with punitive character. However, these are not always the problematic offences. Discrimination, harassment or other forms of racist defamation that might not be deemed a statutory offence but may be just as serious for those affected – but do not fall under the scope of the Act.
The Network Enforcement Act now obligates providers – irrespective of their domicile – to authorise a party in Germany to accept service in the context of fine proceedings and civil proceedings. In the event of failure to satisfy the reporting duty or if the duty to provide effective complaint management is breached, social networks face fines up to EUR 5 million.
Claim against social networks for information
Anyone whose general personality rights have been violated may request the social network provider to provide details concerning the real name of the perpetrator. Whether a court order is required before the provider can disclose such data is not clearly set out in the Act.
From the date the Act enters into force, every user must be offered a transparent procedure to lodge a complaint. This will result in enormous technical effort and providers will have to employ additional personnel with at least basic legal knowledge in order to be able to ensure that the complaints are adequately reviewed and to assess the linguistic nuances of the contents. Although some parts of the Act seem not yet well thought-out: It is not the downfall of freedom of opinion – as feared by many. Under applicable law, platforms must already delete unlawful content (and will continue to cooperate with the authorities also under the new Act), but the lawmakers are now prescribing a special procedure for doing so.