ARTICLE 19 urges the German government to repeal the Act to Improve Enforcement of The Law in Social Networks, adopted in July 2017. The Act fails to comply with international freedom of expression standards. We believe that the requirements on private companies to enforce problematic German criminal laws will lead to excessive censorship and threaten the right to freedom of expression online. We are also concerned that the Act sets a dangerous example to other countries that more vigorously apply criminal provisions to quash dissent and criticism.
In June 2017, ARTICLE 19 conducted a legal analysis of the previous draft of the law, which is intended to target online “hate speech”, and similarly highlighted serious concerns for freedom of expression. We found the draft created a model of intermediary liability that incentivised blocking of content by companies without clear guidance on freedom of expression or sufficient legal determination on what content was to be blocked. We raised our concerns with the German government in April through an alert to the Council of Europe’s platform on media freedom alongside several other internet and media freedom organisations.
The response provided by the German government on 29 August stated that there is “no reason to fear” free expression violations from the new law, and suggested that Article 5 of the German Constitution (Basic Law), which protects free expression, does not apply to areas covered by the criminal law. This is a worrying suggestion, given that the German Criminal Code continues to criminalise “defamation of religion” and defamation more broadly, as well as broadly defined concepts of “hate speech”, all of which raise serious free expression concerns and are inconsistent with international standards.
While changes have been made between the previous draft and the approved law, the Act remains serious threat to online freedom of expression and information.
The broader effects of enacting such a law have already been seen, as a bill put forward in the Russian parliament, which closely resembles the German draft and would similarly require social networks to remove posts deemed unlawful or face a significant fine, is set to further entrench Russian internet censorship.
Based on our analysis of the approved version of the law, we call on the German government to:
- Repeal the Act, with consideration given to retaining Section 2 on reporting requirements in alternative legislation to increase transparency around online content moderation by private actors;
- Comprehensively revise the German Criminal Code to remove offences that are not compatible with international human rights law on freedom of expression, including but not limited to those listed in the Act.
The full legal analysis of the Act to Improve Enforcement of the Law in Social Networks is available here.