social media

It was in summer 2017, only a few months before the federal elections, when the German Department of Justice (DoJ) finally got the upper hand in an internal struggle within the German government over how to deal with “hate speech” and “fake news” online. There had been fears rising within political Berlin that foreign forces, such as Russia, could spread “fake news” via social media to meddle in the upcoming elections. In addition to this, the German right-wing populist party AfD was rapidly gaining momentum, and their supporters were also strongly relying on social media. AfD supporters used social networks to organize themselves, but also to intimidate political opponents. Being bullied and threatened via social networks had become an everyday experience for many politicians.

An alliance of hardline policymakers and left-wing politicians finally succeeded in pushing through the Network Enforcement Act—with the goal of countering the risk of foreign “fake news” campaigns, but also to hamper the rise of the far right in social media. There were objections from the opposition, but after a phase of heated discussions, the law was finally passed.

Social media companies now must suppress illegal content in their networks.

The Network Enforcement Act became effective on Oct. 1, with a “phase-in” period granted to the providers until Jan. 1. The new law obliges the providers of “Social Networks” with more than 2 million registered users in Germany to suppress illegal content within their services. The providers do not have to actively search for illegal content, but they have to ensure that there is a reporting mechanism, and if illegal content is reported, they are required to remove it. This system has to be implemented before the end of 2017, so the providers are currently working against a tight deadline.

The Network Enforcement Act obliges the providers to ensure that illegal content on their networks is removed within a short timeframe. In “obvious” cases, the infringement must be removed within 24 hours after the report, in other cases within seven days. A prolonged period is possible when facts are in dispute. In addition to this, the Network Enforcement Act obliges each provider who receives more than 100 notifications of illegal content per calendar year to publish a detailed report. The providers also must appoint an authorized representative within Germany to whom claimants, courts and authorities can send their requests; including court actions. A breach of these obligations can lead to fines of up to EUR 50 million.

A deficient framework for self-regulation.

Another key element of the new law is a system of self-regulation by the social network providers. This system was added late in the legislative process, as an answer to growing criticism. The providers now have the opportunity to found a joint “approved self-regulation body,” which can help them deal with the notified requests, but also gives them a liability privilege.

This privilege is, however, limited to cases where the social media provider “refers” a case to the self-regulation body, and it is questionable how frequently this could happen, as self-regulation bodies can be costly. In addition, the legal framework for the self-regulatory body includes some considerable obstacles, so it is questionable whether such a system could be established in practice at all.

Strong criticism, also from international organizations.

The Network Enforcement Act has been under close observation, both from the European Union and from other international organizations, such as the United Nations or OSCE. Many NGOs have also campaigned against the act, such as Reporters Without Borders or the German Bar Association. Key points of criticism are:

  • Because it is ultimately the state who will prescribe in the law which content is “illegal” in social networks, the new act would lead to a “ministry of truth,” i.e. a situation where the state can outlaw dissenting opinions and suppress them.
  • The decision as to which opinions are, in the individual case, admissible should not be taken by private companies. Implementation of complex law that requires weighing of interests should be done by courts or state-independent regulatory bodies. The law violates the fundamental principle of independency of media regulation.
  • The law incentivizes the providers to “over-block,” i.e. to remove content that is actually lawful because it is protected by the right to free speech. In particular in borderline cases, removing the content would be the easier choice for the provider.
  • The law likely breaches EU law, because it obliges the providers to store data and to provide contact points within Germany. This discriminates against providers who have their headquarters elsewhere in the EU, and therefore violates the “country of origin” principle enshrined in the EU e-commerce-directive.
  • The law would lead to the creation of a database with very sensitive data – possibly containing detailed information on who spread what type of illegal content, and for what reason. There are rules for this type of database in the incoming EU General Data Protection Regulation, which were not observed by the lawmakers when drafting the new act.

This criticism is largely shared by the providers themselves.

What will happen next?

While the providers struggle to meet the deadline of Jan. 1, the future of the law is uncertain. On one hand, the previous government lost the last election, but it is unclear what the future German government will look like. Only the two previously ruling parties had supported the act before. The other parties who might possibly join the government have said that they want an abolishment, or at least a fundamental revision, of the Network Enforcement Act. Much is unclear though, as long as the federal Parliament is unable to form a government.

However, even if the new law were to be abolished, it may not be the end of it. The EU Commission, which proposes new laws for the EU, has closely monitored the process in Germany—partially because it is concerned that the German law might infringe fundamental principles of EU law, but also because the commission is considering whether the German law might be a model for an EU law. This is why not only the past, but also the future of the Network Enforcement Act is of crucial importance for all companies that offer social media services in the EU. Whatever the outcome is in Germany will likely influence the law that impacts the entire EU.

Simon Assion is a specialized lawyer in all areas of communications and information law, based in Bird & Bird's Frankfurt office. He advises enterprises in cases and projects relating to data protection, media and communications regulation, competition law and IP. He is particularly interested in matters such as the internet of things, net neutrality, big data or “Over The Top” services in telecommunications and media.

social media

It was in summer 2017, only a few months before the federal elections, when the German Department of Justice (DoJ) finally got the upper hand in an internal struggle within the German government over how to deal with “hate speech” and “fake news” online. There had been fears rising within political Berlin that foreign forces, such as Russia, could spread “fake news” via social media to meddle in the upcoming elections. In addition to this, the German right-wing populist party AfD was rapidly gaining momentum, and their supporters were also strongly relying on social media. AfD supporters used social networks to organize themselves, but also to intimidate political opponents. Being bullied and threatened via social networks had become an everyday experience for many politicians.

An alliance of hardline policymakers and left-wing politicians finally succeeded in pushing through the Network Enforcement Act—with the goal of countering the risk of foreign “fake news” campaigns, but also to hamper the rise of the far right in social media. There were objections from the opposition, but after a phase of heated discussions, the law was finally passed.

Social media companies now must suppress illegal content in their networks.

The Network Enforcement Act became effective on Oct. 1, with a “phase-in” period granted to the providers until Jan. 1. The new law obliges the providers of “Social Networks” with more than 2 million registered users in Germany to suppress illegal content within their services. The providers do not have to actively search for illegal content, but they have to ensure that there is a reporting mechanism, and if illegal content is reported, they are required to remove it. This system has to be implemented before the end of 2017, so the providers are currently working against a tight deadline.

The Network Enforcement Act obliges the providers to ensure that illegal content on their networks is removed within a short timeframe. In “obvious” cases, the infringement must be removed within 24 hours after the report, in other cases within seven days. A prolonged period is possible when facts are in dispute. In addition to this, the Network Enforcement Act obliges each provider who receives more than 100 notifications of illegal content per calendar year to publish a detailed report. The providers also must appoint an authorized representative within Germany to whom claimants, courts and authorities can send their requests; including court actions. A breach of these obligations can lead to fines of up to EUR 50 million.

A deficient framework for self-regulation.

Another key element of the new law is a system of self-regulation by the social network providers. This system was added late in the legislative process, as an answer to growing criticism. The providers now have the opportunity to found a joint “approved self-regulation body,” which can help them deal with the notified requests, but also gives them a liability privilege.

This privilege is, however, limited to cases where the social media provider “refers” a case to the self-regulation body, and it is questionable how frequently this could happen, as self-regulation bodies can be costly. In addition, the legal framework for the self-regulatory body includes some considerable obstacles, so it is questionable whether such a system could be established in practice at all.

Strong criticism, also from international organizations.

The Network Enforcement Act has been under close observation, both from the European Union and from other international organizations, such as the United Nations or OSCE. Many NGOs have also campaigned against the act, such as Reporters Without Borders or the German Bar Association. Key points of criticism are:

  • Because it is ultimately the state who will prescribe in the law which content is “illegal” in social networks, the new act would lead to a “ministry of truth,” i.e. a situation where the state can outlaw dissenting opinions and suppress them.
  • The decision as to which opinions are, in the individual case, admissible should not be taken by private companies. Implementation of complex law that requires weighing of interests should be done by courts or state-independent regulatory bodies. The law violates the fundamental principle of independency of media regulation.
  • The law incentivizes the providers to “over-block,” i.e. to remove content that is actually lawful because it is protected by the right to free speech. In particular in borderline cases, removing the content would be the easier choice for the provider.
  • The law likely breaches EU law, because it obliges the providers to store data and to provide contact points within Germany. This discriminates against providers who have their headquarters elsewhere in the EU, and therefore violates the “country of origin” principle enshrined in the EU e-commerce-directive.
  • The law would lead to the creation of a database with very sensitive data – possibly containing detailed information on who spread what type of illegal content, and for what reason. There are rules for this type of database in the incoming EU General Data Protection Regulation, which were not observed by the lawmakers when drafting the new act.

This criticism is largely shared by the providers themselves.

What will happen next?

While the providers struggle to meet the deadline of Jan. 1, the future of the law is uncertain. On one hand, the previous government lost the last election, but it is unclear what the future German government will look like. Only the two previously ruling parties had supported the act before. The other parties who might possibly join the government have said that they want an abolishment, or at least a fundamental revision, of the Network Enforcement Act. Much is unclear though, as long as the federal Parliament is unable to form a government.

However, even if the new law were to be abolished, it may not be the end of it. The EU Commission, which proposes new laws for the EU, has closely monitored the process in Germany—partially because it is concerned that the German law might infringe fundamental principles of EU law, but also because the commission is considering whether the German law might be a model for an EU law. This is why not only the past, but also the future of the Network Enforcement Act is of crucial importance for all companies that offer social media services in the EU. Whatever the outcome is in Germany will likely influence the law that impacts the entire EU.

Simon Assion is a specialized lawyer in all areas of communications and information law, based in Bird & Bird's Frankfurt office. He advises enterprises in cases and projects relating to data protection, media and communications regulation, competition law and IP. He is particularly interested in matters such as the internet of things, net neutrality, big data or “Over The Top” services in telecommunications and media.