What might Germany’s new hate speech take-down law mean for tech companies?

A quick informal look at an English-language draft of the NetzDG

Image: Markus Spiske

In preparation for the upcoming changes to EU privacy law*, I’ve been watching parallel legal developments in both Austria and Germany around the subject of hate speech take-downs. It looks like Germany’s parliament finally did pass the dreaded NetzDG, or Network Enforcement Act (Netzwerkdurchsetzungsgesetz) — though I still don’t understand where this will sit in relation to the body of EU law around this topic.

* Note: NetzDG is not part of the GDPR regulation, but both touch on speech issues.

Here is some popular coverage:

NetzDG law in English (PDF)

I always prefer to go to the source for these things, where I am able. So I wrote at the end of May 2017 to the German government for an English-language version of the then draft law. Here is what they sent me back (22 May, 2017).

I just put out another request to my contact there for an updated draft, and if I can get them, links to the important parts of the German Criminal Code and their exact precise definition of hate speech, which I have yet to uncover. Will update this doc if and when I get that information.

UPDATE: Links to applicable German Criminal Code clauses.

Playing hardball

So the main takeaway for me here, from my admittedly amateur perspective, is that the new rules are intended to be an extension of the existing criminal code, but applied to social networks doing business in the country. And they appear to be pretty serious about it, as per this recent article about German police raiding 36 homes because of hateful postings:

Provisions of the draft law

I’m not a lawyer, but let’s look through the draft of the law and see if we can make rough sense of it at least. Note: my draft version linked above may or may not be the same as the final version (will update later when I know).

Section 1(1) defines the scope:

“(1) This Act shall apply to telemedia service providers which, for profit-making purposes, operate internet platforms that enable users to exchange and share any content with other users or to make such content available to the public (social networks). Platforms offering journalistic or editorial content, the responsibility for which lies with the service provider itself, shall not constitute social networks within the meaning of this Act.”

So that seems to pretty clearly set up a distinction between a platform, with user-generated content, versus what might be more of a newspaper-style site or service, which is not affected. (Though perhaps such a site’s comment section might be??)

  • Section 1(2) exempts such platforms who have fewer than 2 million users in Germany.
  • Section 1(3) references specific clauses in the German Criminal Code — which I will track down and post as a follow up.

Section 2 sets up a reporting obligation by the companies:

“(1) Providers of social networks shall be obliged to produce quarterly German- language reports on the handling of complaints about unlawful content on their platforms…”

Reports will be made to the German Federal Register, and must be available on the site publicly and permanently.

Section 2(2) spells out what’s included in the transparency reports. Looks pretty rigorous, but I won’t go through all the requirements here, as I don’t see any major curveballs.

Section 3 regards the handling of complaints. 3(1)(3):

“The provider shall supply users with an easily recognisable, directly accessible and permanently available procedure for submitting complaints about unlawful content.”

We see this sort of requirement in the GDPR about transparency for lodging complaints. 3(2)2 stipulates that the company:

“removes or blocks access to content that is manifestly unlawful within 24 hours of receiving the complaint;”
  • Unlawful content must be removed or blocked after 7 days. 3(2)3.
  • Blocked content has to be retained in Germany as evidence. 3(2)4
  • Both poster of content and complainant must be notified with explanation. 3(2)5
  • Complaints and actions taken are recorded in Germany. 3(3)

This one is really fun from 3(4):

“The social network’s management shall offer the persons tasked with the processing of complaints training courses and support programmes delivered in the German language on a regular basis, this being no less than once every six months.”

Section 4 talks about fines. (May be up to $5M Euro)

  • Looks like you must have someone in Germany who is a designated agent.
  • Section 4(2): “the regulatory offence may be sanctioned with a regulatory fine of up to five hundred thousand euros, and in other cases under subsection (1) with a regulatory fine of up to five million euros.”

Section 5 goes more into the person authorized to receive service in Germany.

Hate speech & fake news

After a bit more housekeeping, the draft includes a section II, titled “Main substance of the draft,” which includes, among other things the following:

“Hate crime generally falls within the scope of criminal offences such as malicious gossip, defamation and incitement to hatred. Fake news is also covered by the legislation if it fulfils the requirements of one or more of the criminal offences enumerated in section 1(3), such as disturbing the public peace by providing misleading information about a criminal offence.”

Liability regime

There is also a call-out to Section 10 of the German Telemedia Act (2007) which describes the liability regime for service providers. For convenience, here is Section 10 of that act:

Section 10 Storing of information
Service providers shall not be responsible for the information of third parties which they store for a recipient of a service, as long as
1. they have no knowledge of the illegal activity or the information and, as regards claims for damages, are not aware of any facts or circumstances from which the illegal activity or the information is apparent, or
2. upon obtaining such knowledge, have acted expeditiously to remove the information or to disable access to it.”

They also mention in the section II of the NetzDG draft that in cases of violations, “it is also possible for the owner of the company operating the social network to be prosecuted…” following Section 130 of the Regulatory Offences Act.

tl;dr

From what I can see in popular coverage, large social media companies such as Facebook are none too happy about these changes, as they feel there will be a chilling effect due to an added incentive to take down content which may only be potentially illegal, to avoid running afoul of the laws. The possibility here is all too real, as it’s being left up to private companies — more or less — to make interpretations of national law, and the risk of mistakes are high.


If I come up with any more up to date information regarding this I will add it as an update to this document, or a response linked below.

Like what you read? Give Tim Boucher a round of applause.

From a quick cheer to a standing ovation, clap to show how much you enjoyed this story.