Last month, the German government approved a draft law intended to curb illegal online hate speech. The law is now likely to be adopted by the German Parliament, the Bundestag, which has recently held its first round of negotiations. Germany already has the strictest social media regulation of any democratic state (the 2018 NetzDG), but the government argues that new measures are necessary because of recent violent attacks and increased threats from right-wing extremist circles. Clearly, the government is justified in taking such threats seriously, but whether another crackdown on online speech will in fact reduce the threat of real-world violence is doubtful. What is more, the proposed draft introduces dramatic and disproportionate risks to free expression and user privacy that German legislators must remedy before adopting this legislation.
The ‘Draft Act on Combating Right-Wing Extremism and Hate Crime’ (Entwurf eines Gesetzes zur Bekämpfung des Rechtsextremismus und der Hasskriminalität) includes amendments to two laws – the Telemedia Act and the NetzDG), among others. Under the new rules, social media platforms will not only have to assess and decide on restricting allegedly illegal content, but also proactively report it to the Office of the Federal Criminal Police (Bundeskriminalamt – BKA) and disclose to BKA personal data of the user that posts the content. Further, the social media company is barred from notifying the user for a minimum of 14 days that his or her content has been reported to the police.
Proactive reporting obligations apply to a range of potential criminal offences. These include: expressions of approval of certain criminal offences, depictions of violence, threats of violence, and propaganda for parties or organisations deemed unconstitutional. Determining whether a social media post qualifies as infringement of one of these paragraphs requires careful assessment of context, tone, language, and of the interaction or discussion it is part of. There will inevitably be a broad gray zone of content that even German legal experts would find it difficult to agree on. Drawing the line between legal and illegal content is difficult, context-dependent, and unavoidably subjective.
The draft law incentivises reporting in cases of doubt because a company can be fined for failure to report, but faces no sanction for reporting lawful content. Obviously, the prospect of having personal information secretly shared with law enforcement will cause users to self-censor and refrain from addressing controversial issues online. The new rules may also tempt people to over-report other users they disagree with, with the knowledge that a notification means automatic reporting to the police. In consequence, the law would likely result in excessive reporting of content that is legal (but offensive to some), and not connected to real-world threats of violence.
Additionally, the law arguably clashes with jurisdictional principles in several international legal frameworks. It draws no distinction between social media companies and users located in or outside Germany, and it is likely to violate provisions in the ‘EU e-Commerce Directive’ on general monitoring, and the country-of-origin principle. Most of the social networks affected by this draft law are headquartered outside Germany and much of the content visible in Germany is uploaded by users abroad. Requiring platforms to provide personal data of users abroad can in many cases conflict with laws in the country of the platform’s establishment. It violates fundamental human rights to privacy and free expression of users around Europe and beyond who are not subject to German law and jurisdiction. The draft law conflicts with established mutual legal assistance frameworks and practices for law enforcement authorities to request data from service providers established in other countries. It also conflicts with a draft EU legislation establishing an EU-wide framework for sharing electronic data for criminal investigations (‘E-evidence’), and with the Council of Europe’s work on the second Additional Protocol to the Budapest Convention that is intended to enable cross-border disclosure of subscriber information.
It is an important and legitimate objective for the German government and legislators to deal with threats of violence from extremists. However, this draft law includes measures that carry disproportionate risks to free expression and privacy, and it conflicts with EU and international legal frameworks. These are issues German legislators must address before adopting the draft legislation.