Updated: Mar 16, 2022
In recent years, hate speech has increased significantly on the internet and social media spaces (Bundeszentrale für politische Bildung 2017; Jedicke 2020). The German government has responded to this rise with new regulations for social media providers. As of Tuesday, February 1st, 2022, corporations like Facebook and Instagram are obligated to report illegal content, such as the incitement of hatred, swastikas, depictions of child abuse, and the data-sharing of users spreading illegal content to the German Federal Criminal Police Office (BKA). Furthermore, these companies are only allowed to inform a user that their data has been sent to the police after a month, but law enforcement can also forbid them from doing so entirely (Goujard 2022). These regulations have been met with strong resistance from key social media providers. Shortly after the new laws were adopted in the summer of 2021, Google and Meta (formerly Facebook) filed lawsuits at the Administrative Court in Cologne. In January 2022, TikTok and Twitter followed suit (Goujard 2022).
The new provisions are amendments to the existing Network Enforcement Act (NetzDG), which came into force in 2017. The law requires social network providers to collect and investigate complaints regarding illegal content, and to delete such content within 24 hours. The networks also must publish reports demonstrating proof of their compliance with these statutes (Die Bundesregierung 2021). The lawsuits filed by Google, Meta, TikTok, and Twitter are specifically directed against Section 3a and b of the Network Enforcement Act. The article in question concerns a newly established central office at the BKA, which is intended to initiate thousands of proceedings per month, streamlining the process of identifying and prosecuting online agitators. The new rules are aimed at fighting right-wing extremism on the internet, especially in light of the attacks in Halle, Hanau, and Kassel (Der Spiegel 2022). These three attacks that shook Germany in 2019 and 2020 are part of a series of violent acts rooted in right-wing extremism (Berliner Morgenpost 2020).
However, the social media plaintiffs argue that the new provisions in the Network Enforcement Act do not comply with European and German privacy laws. They are concerned that the reform constitutes a substantial infringement on people's fundamental rights, such as the right to privacy. Google stated that they would only release user information after “a detailed examination by a court and judicial confirmation” (Goujard 2022). According to Twitter, the new rules would force private companies to become “prosecutors by reporting users to law enforcement even in the absence of illegal behavior” (Goujard 2022). Due to their swift legal action, Google and Meta are so far exempt from the new provisions and do not have to report back to the BKA central office at least until a court decision has been made. TikTok and Twitter, however, are legally obligated to report their data, with the amendment having taken effect from the 1st of February 2022 (Goujard 2022).
Even though the outcomes of the proceedings are still unclear, experts believe it is likely that the court will rule in favor of the platforms. They believe the courts will find the new provisions to be a disproportionate violation of privacy when weighed against the threat they may realistically curb, given that the BKA expects only 60% of the reported content to even lead to legal proceedings. The rulings in these cases could have important implications for the Digital Services Act, a content moderation law that is currently being negotiated in the European Union and that could come into force in 2023. Whatever the court in Cologne decides could act as a signal for social media and internet companies to take legal action against future EU-wide regulations (Goujard 2022). The legal battle in Germany represents the struggle to find a balance between the right to privacy and the fight against hate speech and misinformation, a struggle the EU will likely also face when the Digital Services Act comes into force.
Written by Louisa Scheiter, Amsterdam Chapter of European Horizons
Source: Content Works
Berliner Morgenpost. 2020. “Hanau, Halle, Kassel: Rechtsextreme Anschläge in der
Chronik.” February 2, 2020. https://www.morgenpost.de/politik/article228485029/Eine-
Bundeszentrale für Politische Bildung. 2022. “Was ist Hate Speech?” February 4, 2022.
DER SPIEGEL. 2022. “Twitter Klagt Gegen BKA-Zentralstelle.“ January 1, 2022.
Die Bundesregierung. 2021. “Netzwerkdurchsetzungsgesetz.” March 10, 2021.
Euronews. 2022. “Twitter Files a Lawsuit in Germany Against New Rules on Reporting or
Blocking Criminal Content.” January 31, 2022. https://www.euronews.com/next/ 2022/01/31/ twitter-files-a-lawsuit-in-germany-against-new-rules-on-reporting-or-blocking-criminal-con
Frankfurter Allgemeine Zeitung. n.d. “NetzDG: Aktuelle News zum
Netzwerkdurchsetzungsgesetz.” February 4, 2022. https://www.faz.net/aktuell/technik- motor/thema/netzwerkdurchsetzungsgesetz
Goujard, Clothilde. 2022. “Big Tech takes on Germany.“ POLITICO, February 9, 2022.
Hoppenstedt, Max, and Jörg Diehl. 2022. “So Ermittelt das BKA ab Februar Gegen
Onlinehetzer.“ DER SPIEGEL, January 28, 2022. https://www.spiegel.de/netzwelt/web/ hatespeech-so-ermittelt-das-bka-ab-februar-gegen-online-hetzer-a-a42fd0f9-2d09-4baa-9a74-0d8b64b60f80
Jedicke, Philipp. 2020. “Hate Speech: ‘Betroffen sein heißt nicht Opfer sein.’” Deutsche
Welle, December 27, 2020. https://www.dw.com/ de/hate-speech-umgang/a-55383364