eco Criticizes Proposed Law Against Hate Speech: “When in doubt, against the freedom of opinion”

  • Law encourages indiscriminate culture of deletion in the Internet
  • Rather fast than thorough: notification before the end of the consultation period
  • Sufficient legal regulation, enforcement must remain with the state

The draft legislation presented by the German Federal Justice Minister for the so-called “Netzwerkdurchsetzungsgesetz” (a law for improving law enforcement in social networks) endangers the freedom of opinion in the Internet, eco – Association of the Internet Industry criticizes. The association is in particular against the provision for fixed deadlines for deletion in the proposed law: 24 hours for indisputably illegal content, and 7 days after receipt of a complaint for other cases of unlawfulness: “Every decision about the deletion of questionable content must, first and foremost, be based on a thorough legal examination. The more than 15 years of experience of the eco Complaints Office in dealing with illegal online content clearly shows that the circumstances needing to be examined are often legally very complex. 24 hours is often simply not long enough for a legal classification, especially for legally borderline cases. In principle, what we see with inflexible deadlines is the danger of an indiscriminate culture of deletion, of so-called chilling effects: When in doubt, more will be deleted than would be necessary,” says eco Director of Policy & Law, Oliver Süme. Exorbitant fines additionally increase the pressure to delete.

In a recent position paper on the draft legislation, eco expresses doubt as to whether the objective of the regulation – namely, the improvement of the assertion of rights in social networks in the case of certain offences pertaining to the areas “fake news” and “hate speech” – should in fact be pursued through the expansion of the list of offences in the new draft legislation from 27 March 2017, or whether new provisions should be created for dealing with illegal content. Also under question is why these offences have been included, given that so far no criticism has been targeted at the enforcement of these particular offences, as is underscored in the most recent federal government report on take-downs.

Speed in preference to thoroughness: notification before the end of the consultation period

eco also laments the fact that the Federal Government is clearly more interested in speed than thoroughness, and notified the EU with considerably amended draft legislation even before the end of the scheduled period for written consultations. “We consider the hasty conclusion of one-sided regulatory measures that could have grave consequences for basic civil rights, and the impact of which can not yet be foreseen, to be irresponsible,” according to Oliver Süme.

Sufficient legal regulation, enforcement must remain with the state

From the perspective of eco, a further issue is that the problem of hate speech cannot be solved through further laws. “The Internet is not a legal vacuum – the German Criminal Code also applies here, and at the European level we have the eCommerce Directive, which defines the basic principles under which providers can be held liable for content,” says Süme. “Fake news” and “hate speech” have previously not by definition been criminal offences. Despite this, German law is already well-positioned: In particular, the incitement of the masses, unconstitutional propaganda, and the use of unconstitutional symbols are punishable offences. The dissemination of lies can also be legally forbidden – for example, defamation – and can lead to injunctions or claims for damages against the perpetrator. “The existing legal framework offers all possibilities – the actual challenge is rather enforcement. First and foremost, the state has the responsibility to combat the source of the problem through more effective prosecution of perpetrators and to create a stronger public sensitivity to illegal utterances and content. Prosecution and enforcement must be a task for the state. Transferring responsibility for the compliance with prevailing law completely to providers would not be acceptable. Providers must not be turned into the deputy sheriffs of the state,” Süme continues.

Already today, platform operators and ISPs support law enforcement agencies in enforcement, and do this above and beyond their legal obligations through voluntary commitments, such as the eco Complaints Office.

Oliver Süme
© eco - Verband der Internetwirtschaft e.V.