Network Enforcement Act 2020 Reloaded: Association of the Internet Industry urges political debate on how to deal with illegal content on the Internet

• eco publishes guidelines on current reform of the German Network Enforcement Act (NetzDG)
  

The Association of the Internet Industry supports the containment of hate, incitement and right-wing extremism as well as the fight against illegal content on the internet. The controversial law continues to cause fierce debate: the legislative package provides for an obligation to surrender passwords as well as a duty to disclosure inventory and usage data by telemedia service providers. Furthermore, the Network Enforcement Act (NetzDG) will also create a reporting obligation for social networks operators.

In order to align the goals intended by the draft laws with the respective options of social network operators, eco has now formulated guidelines for the revision of the Network Enforcement Act (NetzDG). The Association of the Internet Industry will also took part in a public hearing on 6 May 2020 on the “Law to Combat Right-Wing Extremism and Hate Crime”.

Oliver J. Süme, eco Chair of the Board, comments:

“The requirements of the Network Enforcement Act must remain proportionate. We therefore need a social and political discussion on whether a reporting obligation effectively solves the problems addressed in the political debate, such as the containment of hatred, incitement and right-wing extremism. In addition, Germany should first wait for the possibility of an EU-wide legislative project and not, as is currently the case, act on its own in an uncoordinated manner.”

In December 2019, the Federal Ministry of Justice presented a draft bill for a law to combat right-wing extremism and hate crime. On 19 February 2020, the law was adopted by the Federal Cabinet; it had been submitted to the EU Commission for notification a few days earlier.

To date, there is no European approach on common standards for dealing with hate content on the internet. Since the EU Commission has already announced its own activities within the framework of the Digital Services Act, and intends to adopt corresponding legislation in the near future, eco – Association of the Internet Industry calls for Germany to initially wait for the possibility of an EU-wide legislation project. At the same time, the Association has formulated the following guidelines for the further reform process:

• Applicability for companies must be clearly defined.

Only if this is sufficiently and clearly defined can the platform operators intended by the legislators fulfil their obligations within the law.

• Reporting requirements must be reasonable and proportionate.

Any adaptation of the existing rules must not lead to companies being obliged to disclose corporate secrets. For example, social network operators must not be forced to disclose the technical working of their software and algorithms, where applicable.

• The obligations for complaint handling must be in accordance with the planned legal requirements and objectives.

The time limits for dealing with complaints should allow for a proper and objective examination, including an assessment of individual circumstances.

• The principle of regulated self-regulation must be strengthened.

Since the introduction of the NetzDG, social network operators have been able to involve recognized, regulated self-regulation institutions in case handling to deal with user complaints or to weigh up legal issues specific to individual cases. This support should be seen in a positive light and must therefore be maintained and not restricted in the revision of the NetzDG.

• The introduction of a reporting obligation requires a legally secure framework.

A reporting obligation would oblige social network operators to transfer content and user data from the complaints process to a central office at the state prosecution or criminal investigation authorities. For many reasons, establishing such a reporting process is seen as questionable and absolutely needs further discussion.

• Procedures for out-of-court dispute settlements must be clarified and guarantee legal certainty.

It must be clarified whether complaints processing, including out-of-court dispute settlements, can be carried out within the retention period of deleted or blocked content as set out by the NetzDG. To this end, the legal consequences of carrying out dispute settlement procedures, especially with regard to possible subsequent civil law disputes, must also be clarified in advance.