List of Relevant Laws Impacting Free Speech (Germany) (2015-2022)
During the 2016-2022 reporting period, three major developments with potentially speech restricting impact can be observed for Germany:
Statutory platform accountability laws (NetzDG and its amendments)
The German Parliament passed the NetzDG in 2017. The law took full effect on Jan. 1st 2018. Including the 2021 amendments, the law now covers the following prominent due diligence obligations for large social networks in connection with criminal content:
- User-friendly reporting mechanisms;
- Take-down-obligations (including specific time-frames);
- Transparency (bi-annual reports and data access for researchers);
- Legal Representatives (for civil proceedings and law enforcement);
- Notification of Law Enforcement (when a social network has knowledge of a serious crime); and
- Internal complaint-handling system (cost-free re-evaluation of content moderation decisions, also open to notice-senders).
Interestingly, when the NetzDG was introduced, tech platforms decided against challenging it through litigation – even though legal scholars thought there was a good chance of success by making legal arguments based on there being a potential conflict with theE-Commerce-Directive’s country-of-origin principle in EU law.
Since 2017, large platforms have invested substantial resources to comply with the new law. All major platforms appointed legal representatives (mostly law firms) and re-calibrated their flagging mechanisms. The platforms’ NetzDG-transparency reports have documented that millions of pieces of content have been reported under the NetzDG; take-down ratios vary, with averages at about 10-20 %, compared to the total number of NetzDG-complaints received. Transparency reports indicate that platforms can handle the time-frames, with most decisions being taken within 24 hours.
In 2021, additional obligations to notify law enforcement of content amounting to serious crime were inserted into the law. Also obligatory in-house appeals mechanisms were introduced. Major platforms (YouTube, Facebook/Instagram, TikTok, Twitter) challenge these new obligations in Court and – until now and for the most part – have won their cases (their argument being there is a conflict with the country-of-origin-principle of the E-Commerce-Directive).
As the DSA largely overrides the NetzDG, the latter will soon be repealed. Looking back at NetzDG’s impact, one can highlight that the law has demonstrated that regulation of Big Tech content moderation is possible in the first place; though one can observe that companies might exploit loopholes and enforcement against fundamentally non-compliant services is difficult. Moreover, NetzDG statistics have shown that fears of overblocking/censorship through the law were unjustified. One might also observe that while the NetzDG itself might have had a narrow direct impact, the discussion and public debate that the law inspired (platforms should take more responsibility) might have had a greater impact on platform behavior than the law itself.
Civil law filter obligations (notice and stay-down)
Filter obligations through private rights enforcement / litigation play a crucial role when it comes to restricting illegal content online. German courts have been spearheading the evolution of the law here. In a landmark decision in 2004, the German Federal High Court laid the foundations for filter-obligations to be imposed on platforms through civil law. As a consequence, a proper notice might trigger future-oriented filter obligations (notice and stay-down instead of only notice and take-down). The courts have extended this logic to decide many other IP cases. We now also see (successful) litigation for filter obligation in the field of personality rights infringements (e.g. claimants forcing Facebook to filter for certain defamatory memes). It remains to be seen whether the Court of Justice of the European Union – through future explanations of the Courts logic from its Glawischnig-decision – will narrow these German filter obligations.
Since the introduction of the NetzDG, more and more voices have been raised for strengthening criminal law enforcement as well (the argument here: take-down and prosecute!). One focus was on specializing police and prosecutors. However, the German lawmakers were also active in amending the Criminal Code to cover certain new phenomena like the dissemination of “enemy”- or “we will get you all”-lists; the dissemination of Upskirting-photographs or threatening other people with criminal offenses.