NetzDG and Human Rights

The past five years have posed new challenges for Europe and the entire world: A rapid spread of digital violence and online “hate speech”, including image-based harassment, fake news, disinformation, propaganda, racism and xenophobia have become a steadily growing social problem fueled by migration crises, political upheavals, a fast rise of populism, the Corona pandemic, and the war in Ukraine. The digital sphere is not, however, a lawless sphere. Unlawful online content must be countered resolutely, but at the same time, adequately.
The project “Network Enforcement Act and Human Rights” addresses the regulatory framework and the detri­mental effects on human rights and fundamental freedoms of the Act to Improve Enforcement of the Law in Social Networks (Network Enforcement Act, NetzDG), which entered into force on 1 October 2017. It also analyzes recent amendments to it: the Act to Combat Right-Wing Extremism and Hate Crime (ReHaKrBG) and the Act Amending the Network Enforcement Act (NetzDGÄndG).
In addition to independent efforts undertaken by the providers of social networks to combat online hate crime and fake news by means of self-imposed communication rules, statutory regulations have been introduced in order to (according to the explanatory memorandum to the law) more effectively combat hate and incitement as well as right-wing extremism on the Internet. IT service providers with more than two million registered users in Germany (those on the scale, for example, of Google, Facebook, YouTube, Twitter, and Instagram) are required as private actors to each set up a transparent complaints management system for the efficient handling of complaints about illegal content as defined in Section 1 (3) NetzDG. The complaints procedure must ensure that IT service providers take note of incoming complaints without delay and determine whether the reported content is illegal, whether it must be deleted – within a very short period of time –, or whether access to it must be blocked. Systematic vio­la­tions of these obligations are punishable by significant fines. As a result of the first amendment to the NetzDG by the Act to Combat Right-Wing Extremism and Hate Crime, which entered into force on 3 April 2021, providers of social networks must, in addition, proactively report certain potentially criminal content to the Federal Criminal Police Office (Bundeskriminalamt, BKA). These obligations are supplemented by amendments to the Code of Crim­i­nal Procedure that, among other things, enable law enforcement authorities to collect usage data from tele­media service providers if certain facts give rise to the suspicion that someone has committed a crime of sig­nif­i­cant importance as a primary or secondary perpetrator (principal or accessory). The NetzDG has been further amended by the Act Amending the Network Enforcement Act, which came into force on 28 June 2021, thus strength­ening the rights of users of social networks.
The NetzDG has remained controversial since its entry into force. In particular, the catalog in Section 1 (3) has lent explosive new force to a large number of criminal offenses that involve freedom of expression, arts and sciences, personal freedoms and human dignity, and freedom of faith and conscience. In effect, private providers of social networks have – against their will – been given the responsibility of balancing human rights and fundamental free­doms against each other and have been made gatekeepers at the threshold of fundamental and human rights. Whether the NetzDG is an adequate further means of combating hate and incitement on the Internet is highly questionable.
By means of statutory interpretation and doctrinal analysis, the project “Network Enforcement Act and Human Rights” aims to show alternative ways of combating right-wing extremism, “hate speech” and hate crime on the Internet that conform with the principles of human rights and fundamental freedoms.