Germany’s Free Speech in the Online Era

By: Sophie Goodman 

Freedom of speech is a delicate balance, as “one man’s protest is another’s hate speech.”[1] In May 2017, a German court held that calling a public figure on a public TV show a “Nazi slut” was covered by freedom of expression.[2] However, German courts may no longer have such power on social media sites.[3]

The Netzwerkdurchsetzungsgesetz (NetzDG) was passed in June 2017 and social media sites, against whom this new law can be enforced, were given until January 2018 to prepare to enforce this law.[4] NetzDG, which “aims to combat hate speech and fake news,”[5] arose in response to an eruption of hate speech on Facebook in 2015 during the migrant crisis.[6] This hate speech led to physical assaults “and arson against migrant shelters.”[7] NetzDG attempts “to transfer existing anti-hate legislation online.”[8] However, balancing the liberties of free speech and preventing hate speech is hard enough in real life, but may be impossible online.[9]

NetzDG applies “to telemedia service providers … which are designed to enable users to share any content with other users or to make such content available to the public.”[10] However, this law only applies to social media sites that have more than two million German members.[11] Effectively, this law applies to Snapchat, Instagram, Twitter, Facebook, and YouTube.[12]

Social media networks are now required, by law, to police and delete any posts that are obviously illegal hate speech.[13] If the social media sites do not remove these posts within 24 hours, they face fines of up to €50 million.[14] However, if a post is more complex, the site will have seven days to act.[15] Before the enactment of this law, “only a minority of illegal posts on social media were being removed within a day.”[16]

NetzDG does not define “obviously illegal” speech, but instead refers to the German Criminal Code.[17] These sections referred to include “‘public incitement to crime,’ ‘violation of intimate privacy by taking photographs,’ defamation, ‘treasonous forgery,’ forming criminal or terrorist organizations, and ‘dissemination of depictions of violence.’”[18] Moreover, social media sites now must have an efficient structure to deal with these complaints.[19] If a social media network receives more than 100 complaints, they must publish a report, in German, about the structure in place, how they handled the complains, and the number of complaints received.[20] With all of these requirements in place, NetzDG “is the most extreme example of efforts by governments and regulators to rein in social media firms.”[21]

NetzDG is an attempt to “balance people’s legitimate right to free speech with others’ desire to be protected against harmful material.”[22] However, many critics believe that this law has not been effective in reaching this goal.[23] Many experts conclude that NetzDG violates Germany’s constitution,[24] which states that “[e]very person shall have the right to freely express and disseminate his opinions in speech …[and that] [t]here shall be no censorship.”[25] Moreover, due to Germany’s extensive defamation and hate speech laws, NetzDG now encompasses a wide breadth of online posts.[26] Because of the expansive rules, this could “result in a wider chilling effect on online expression.”[27]

Since the enforcement of NetzDG, many social media accounts and posts have been deleted or suspended.[28] Moreover, U.S. companies, such as Facebook have hired a large staff in Germany in order to deal with the implications of the new law.[29] Within just days of NetzDG coming into effect, there were a number of controversial deletions and suspensions.[30] This led to the inevitable conclusion that “legitimate expressions of opinion are being deleted. The law is achieving the opposite of what it intended: it is actually hampering the fight against crime.”[31]

Many critics have pointed out that this now leaves the determination of what is hate speech, according to Germany’s constitution, in the hands of U.S. companies.[32] According to NetzDG, the social media networks must decide what is and is not hate speech, which leaves “U.S. companies such as Twitter … able to influence freedom of opinion … in Germany.”[33] U.S. companies are now effectively being given the role of judge as to freedom of expression in Germany.[34]

Moreover, NetzDG has many legal implications. Private citizens and private companies are now in the role of judge and jury, as “[j]udicial review of speech will only occur if the government seeks to bring an action arguing that content was unlawful.”[35] Thus, NetzDG has essentially privatized enforcing the law.[36] Another major legal implication is that once a post is deleted, that evidence cannot be used in court for forensic purposes “unless [that] evidence has been secured in a way that will stand up in court.”[37] Moreover, NetzDG also imposes heavy fines for repeatedly not deleting obviously illegal content.[38] However, if the social media company does not have a physical office in Germany, these fines may be hard, if not impossible, to impose across international borders.[39] Aside from the obvious legal implications, simply “deleting content is not enough. The only way evil can be rooted out is for perpetrators to realize that their actions on the Web have consequences.”[40]

[1] Germany is Silencing “Hate Speech,” but Cannot Define it, The Economist (Jan. 13, 2018), https://www.economist.com/news/europe/21734410-new-social-media-law-causing-disquiet-germany-silencing-hate-speech-cannot-define-it.

[2] Saim Saeed, German AfD Leader Loses Case Against TV Show That Called Her ‘Nazi Slut’, Politico (May 17, 2017, 8:24 AM), https://www.politico.eu/article/german-afd-leader-loses-case-against-tv-show-that-called-her-nazi-slut/.

[3] See Overview of the NetzDG Network Enforcement Law, CDT (July 17, 2017), https://cdt.org/insight/overview-of-the-netzdg-network-enforcement-law/.

[4] Germany Starts Enforcing Hate Speech Law, BBC (Jan. 1, 2018), http://www.bbc.com/news/technology-42510868.

[5] Jenny Gesley, Germany: Social Media Platforms to be Held Accountable for Hosted Content Under “Facebook Act”, Library of Congress (July 11, 2017), http://www.loc.gov/law/foreign-news/article/germany-social-media-platforms-to-be-held-accountable-for-hosted-content-under-facebook-act/.

[6] Geoffrey Smith, Germany’s New Law is a Milestone for Social Media Regulation in Europe, Fortune (June 30, 2017), http://fortune.com/2017/06/30/germany-law-social-media-hate/.

[7] Id.

[8] Scott Roxborough, Why an Ambitious New Online Anti-Hate Speech Law is Backfiring in Germany, Hollywood Reporter (Jan. 15, 2018 6:45 AM), https://www.hollywoodreporter.com/news/why-an-ambitious-new-online-anti-hate-speech-law-is-backfiring-germany-1074232.

[9] Id.

[10] Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken,  Netzwerksdurchsetzungsgesetz [NetzDG] [Network Enforcement Act], June 6, 2017, Deutschen Bundestages at art. 1, § 1, ¶ 1 (Ger.) [hereinafter NetzDG].

[11] Germany Starts Enforcing Hate Speech Law, supra note 4.

[12] Roxborough, supra note 8.

[13] Philip Oltermann, Tough New German Law Puts Tech Firms and Free Speech in Spotlight, Guardian (Jan. 5, 2018), https://www.theguardian.com/world/2018/jan/05/tough-new-german-law-puts-tech-firms-and-free-speech-in-spotlight.

[14] Id.

[15] Germany Starts Enforcing Hate Speech Law, supra note 4.

[16] Germany is Silencing “Hate Speech,” but Cannot Define it, supra note 1.

[17] NetzDG, supra note 10, at art. 1, § 1, ¶ 3.

[18] Overview of the NetzDG Network Enforcement Law, supra note 3.

[19] Germany Starts Enforcing Hate Speech Law, supra note 4.

[20] Overview of the NetzDG Network Enforcement Law, supra note 3.

[21] Germany Starts Enforcing Hate Speech Law, supra note 4.

[22] Mark Scott & Janosch Delcker, Free Speech vs. Censorship in Germany, Politico (Jan. 4, 2018 9:13 PM), https://www.politico.eu/article/germany-hate-speech-netzdg-facebook-youtube-google-twitter-free-speech/.

[23] See id.; see also Germany Starts Enforcing Hate Speech Law, supra note 4.

[24] Bernhard Rohleder, Germany Set Out to Delete Hate Speech Online. Instead, It Made Things Worse, Washington Post (Feb. 20, 2018), https://www.washingtonpost.com/news/theworldpost/wp/2018/02/20/netzdg/?utm_term=.c12bffe1989d.

[25] Grundgesetz [GG] [Basic Law], at art. 5(1), translation at https://www.gesetze-im-internet.de/englisch_gg/index.html (Ger.).

[26] See Diana Lee, Germany’s NetzDG and the Threat to Online Free Speech, Media Freedom & Information Access Clinic (Oct. 10, 2017), https://law.yale.edu/mfia/case-disclosed/germanys-netzdg-and-threat-online-free-speech.

[27] Natasha Lomas, Germany’s Social Media Hate Speech Law is Now in Effect, Tech Crunch (Oct. 2, 2017), https://techcrunch.com/2017/10/02/germanys-social-media-hate-speech-law-is-now-in-effect/.

[28] Scott & Delcker, supra note 22.

[29] Germany Starts Enforcing Hate Speech Law, supra note 4.

[30] Oltermann, supra note 13.

[31] Rohleder, supra note 24.

[32] See id.; see also Michelle Martin & Holger Hansen, German Opposition Calls for Abolition of Online Hate Speech Law, Reuters (Jan. 7, 2018 12:03 PM), https://www.reuters.com/article/us-germany-hatecrime/german-opposition-calls-for-abolition-of-online-hate-speech-law-idUSKBN1EW0Q9.

[33] Martin & Hansen, supra note 32.

[34] See id.

[35] See Overview of the NetzDG Network Enforcement Law, supra note 3.

[36] Rohleder, supra note 24.

[37] Id.

[38] See NetzDG, supra note 10, at art. 1, § 4.

[39] Lomas, supra note 27.

[40] Rohleder, supra note 24.