{"id":10734,"date":"2018-02-14T10:26:23","date_gmt":"2018-02-14T15:26:23","guid":{"rendered":"http:\/\/worldjusticenews.com\/news\/?p=10734"},"modified":"2018-02-14T10:26:23","modified_gmt":"2018-02-14T15:26:23","slug":"germany-flawed-social-media-law","status":"publish","type":"post","link":"https:\/\/worldjusticenews.com\/news\/2018\/02\/14\/germany-flawed-social-media-law\/","title":{"rendered":"Germany: Flawed Social Media Law"},"content":{"rendered":"

(Berlin) \u2013 The new\u00a0German<\/a>\u00a0law that compels social media companies to remove hate speech and other illegal content can lead to unaccountable, overbroad censorship and should be promptly reversed, Human Rights Watch said today. The law sets a dangerous precedent for other governments looking to restrict speech online by forcing companies to censor on the government\u2019s behalf.<\/p>\n

\u201cGovernments and the public have valid concerns about the proliferation of illegal or abusive content online, but the new German law is fundamentally flawed,\u201d said\u00a0Wenzel Michalski<\/a>, Germany director at Human Rights Watch. \u201cIt is vague, overbroad, and turns private companies into overzealous censors to avoid steep fines, leaving users with no judicial oversight or right to appeal.\u201d<\/p>\n

Parliament approved the\u00a0Network Enforcement Act<\/a>, commonly known as NetzDG, on June 30, 2017, and it took full effect on January 1, 2018.<\/p>\n

The law requires large social media platforms, such as Facebook, Instagram, Twitter, and YouTube, to promptly remove \u201cillegal content,\u201d as defined in 22 provisions of the\u00a0criminal code<\/a>, ranging widely from insult of public office to actual threats of violence. Faced with fines up to 50 million euro, companies are already removing content to comply with the law.<\/p>\n

At least three countries \u2013 Russia, Singapore, and the Philippines \u2013 have directly cited the German law as a positive example as they contemplate or propose legislation to remove \u201cillegal\u201d content online.\u00a0The Russian draft law<\/a>, currently before the Duma, could apply to larger social media platforms as well as online messaging services.<\/p>\n

Two key aspects of the law violate Germany\u2019s obligation to respect free speech, Human Rights Watch said. First, the law places the burden on companies that host third-party content to make difficult determinations of when user speech violates the law, under conditions that encourage suppression of arguably lawful speech. Even courts can find these determinations challenging, as they require a nuanced understanding of context, culture, and law. Faced with short review periods and the risk of steep fines, companies have little incentive to err on the side of free expression.<\/p>\n

Second, the law fails to provide either judicial oversight or a judicial remedy should a cautious corporate decision violate a person\u2019s right to speak or access information. In this way, the largest platforms for online expression become \u201cno accountability\u201d zones, where government pressure to censor evades judicial scrutiny.<\/p>\n

At the same time, social media companies operating in Germany and elsewhere have human rights responsibilities toward their users, and they should act to protect them from abuse by others, Human Rights Watch said. This includes stating in user agreements what content the company will prohibit, providing a mechanism to report objectionable content, investing adequate resources to conduct reviews with relevant regional and language expertise, and offering an appeals process for users who believe their content was improperly blocked or removed. Threats of violence, invasions of privacy, and severe harassment are often directed against women and minorities and can drive people off the internet or lead to physical attacks.<\/p>\n

Criticism of the new law has intensified over the past six weeks after content from some high-profile users was blocked or their accounts were temporarily suspended, even though some of those actions were due to violations of the company\u2019s user rules rather than NetzDG.<\/p>\n

Users whose speech was censored either by NetzDG or a violation of a company\u2019s user agreement include a\u00a0leader of the far-right Alternative for Germany party<\/a>, a\u00a0satire magazine<\/a>, and a\u00a0political street artist<\/a>. The content of many other less public personalities may have been improperly blocked or removed, either under NetzDG or a violation of user rules, Human Rights Watch said.<\/p>\n

Four of the larger political parties now oppose the law:\u00a0The Left<\/a>, which voted against the law; the\u00a0Free Democrats<\/a>\u00a0and the\u00a0Alternative for Germany<\/a>, which were not in parliament when the law passed; and the\u00a0Green Party<\/a>, which abstained in parliament\u2019s vote. A senior official of the\u00a0Christian Social Union<\/a>, which was part of the government that proposed the law, has also come out against it.<\/p>\n

Chancellor Angela Merkel has defended the need to regulate the internet but said \u201cit may be that we also have to make changes<\/a>\u201d to the law. The\u00a0coalition agreement<\/a>\u00a0between her Christian Democratic Union, the Christian Social Union, and the Social Democratic Party for a new government, released on February 7, calls the NetzDG law a \u201ccorrect and important step\u201d but says the government will evaluate ways to \u201cfurther develop\u201d the law.<\/p>\n

Many organizations dedicated to human rights and media freedom have opposed the law since it first appeared in draft form. The\u00a0Global Network Initiate<\/a>, a coalition of nongovernmental organizations, academics, investors, and companies committed to free expression and privacy online,\u00a0said the law would \u201coutsource decisions\u201d about freedom of expression<\/a>\u00a0to private companies. In an\u00a0open letter to eight EU commissioners<\/a>, a\u00a0group<\/a>\u00a0of six civil society and industry associations\u00a0said the law would chill freedom of speech online<\/a>\u00a0by incentivizing companies to remove reported content. The freedom of expression organization\u00a0Article 19 issued a legal critique of the law<\/a>, saying it will \u201cseverely undermine freedom of expression in Germany, and is already setting a dangerous example to other countries.\u201d<\/p>\n

The United Nations special rapporteur on freedom of opinion and expression, David Kaye,\u00a0said the draft law was at odds<\/a>\u00a0with international human rights standards. The\u00a0government defended the law<\/a>, citing changes to the draft that Kaye reviewed, such as more flexibility on deadlines to remove content and the introduction of an authorized body to review complex cases, but failed to address Kaye\u2019s key concern that the law places responsibilities on private companies to regulate the exercise of freedom of expression.<\/p>\n

\u201cWith the NetzDG law, Germany has undermined free speech at home and set a troubling example for other countries that want to block artistic expression, social criticism, political activism, or independent journalism online,\u201d Michalski said. \u201cForcing companies to act as censors for government is problematic in a democratic state and nefarious in countries with weak rule of law.\u201d<\/p>\n

A Flawed Law<\/strong><\/p>\n

Under the\u00a0NetzDG law<\/a>, companies with more than 2 million registered users in Germany are required to establish an effective and transparent procedure to receive and review complaints of allegedly illegal content. They must block or remove \u201cmanifestly unlawful\u201d content within 24 hours of receiving a complaint but have up to one week or potentially more if further investigation is required. In especially complex cases, companies can refer the case to an industry-funded but government-authorized body that is required to make determinations within a seven-day window. The government has not yet produced the criteria for authorizing such a body, and it can change the criteria at will.<\/p>\n

Companies must inform users of all decisions made in response to complaints and provide justification, but the law does not provide for meaningful judicial oversight or a process of judicial appeal when users want to contest a corporate or industry body decision to block or remove a post.<\/p>\n

Under the law, the Federal Ministry of Justice and Consumer Protection can fine a responsible individual up to 5 million euro and the company up to 50 million euro for failing to establish a compliance system or for failing to issue a public report on their actions related to the law every six months. The\u00a0amount of the fine<\/a>\u00a0depends on the gravity of the offense and the number of users on the platform, but the ministry has not yet produced the fine structure.<\/p>\n

Company Responses<\/strong><\/p>\n

To comply with the law, social media companies have created new mechanisms to report allegedly illegal content and hired reviewers to analyze those reports. These reviewers join the teams these companies already had in place to monitor compliance with their user agreements.<\/p>\n

Google, which owns YouTube,\u00a0announced in December 2017<\/a>\u00a0that, over the next year, it would bring the total number of people working to address\u00a0content that might violate its policies<\/a>\u00a0to over 10,000. Facebook told Human Rights Watch that it employs about 10,000 content reviewers globally, either directly or via contractors, including from\u00a0two centers in Germany<\/a>, primarily to monitor violations of its \u201cCommunity Standards<\/a>\u201d but also violations of NetzDG.<\/p>\n

Both of these companies, as well as Twitter, have reporting forms specifically for NetzDG, which helps them to assess potential violations of the law and to collect data for the required six-month reports.<\/p>\n

A significant difference between reporting a violation of community standards and a violation of NetzDG is the right to appeal. For the former, Facebook, YouTube, and Twitter all offer the chance for users to challenge a decision to block or remove content. For the latter, the law does not require the company to offer an appeals process and the companies have not done so.<\/p>\n

Domino Effect<\/strong><\/p>\n

The\u00a0precedent<\/a>\u00a0that the NetzDG has set deserves special attention, as governments around the world increasingly look to restrict online speech by forcing social media companies to act as their censors, Human Rights Watch said. Some examples include:<\/p>\n