NetzDG: Effective as of 1 January, but of Questionable Constitutional Status

As of 1 January 2018, companies are obliged to fully implement the “Act for the Improvement of Law Enforcement in Social Networks” (Network Enforcement Act, NetzDG), which entered into force in Germany in October 2017. What this means: Social networks such as Facebook, Twitter, or YouTube must make it possible for their users to complain about content which is illegal in Germany and to report it to the respective companies. The operators are then obliged to check the reported contents and delete them in instances of suspected legal infringements. The decision as to the lawfulness of the content rests with the network operator. The Association of the Internet Industry reiterates its fundamental criticism of the NetzDG and its prescribed procedures. “eco categorically rejects the contentious and constitutionally questionable Network Enforcement Act and will continue to advocate for the abolition of the law.”

In particular, eco condemns the still unclear scope of application of the draft law, as well as the 24-hour deletion deadline for "manifestly unlawful" cases, which will result in the overblocking of content by the platform operators and a consequent threat to freedom of expression on the Internet. The high fines will place additional pressure on companies. This could have the effect of permissible content also being deleted.

The draft provisions for fines illustrates the inherently flawed approach of the Network Enforcement Act to combating hate speech. When internet companies are unilaterally obliged to decide on illegality or freedom of expression and, if necessary, to remove comments from their platforms, then a private-sector organized parallel judicial system has effectively emerged, one which operates independently of statutory criminal prosecution and the jurisdiction of the courts. Offenders will not be held accountable and victims will not be given justice. From eco’s perspective, this directly contravenes our legal system.

eco will continue to vigorously campaign for the abolition of the law.