The German law with the funky title Netzwerkdurchsetzungsgesetz (NetzDG), which came into force on January 1st 2018, inspired hope for an end of fake news and hate speech online and was called the protection from purposive propaganda. The generally honored aim was to make social networks spaces online where the freedom of opinion was not restricted by illegal defamation and aggressive verbal slander.
A mechanism of control to protect constitutional values
Following this intention efforts were made to identify and eliminate fake news as quick and effective as possible. That is why the law contents the duty of social networks to delete content that was adjudged to be untrue or criminal. This measure is to be taken within a period of seven days, in cases of “obviously” criminal content even within 24 hours. Furthermore social networks are admonished to generate frequent public reports to display to the public the efforts they take to obey the law and the results achieved by the measures proposed in NetzDG.
Supporter of the new law agreed, that the legislator should fulfill his duty to protect the citizens broad-based and in their virtual living space too. Especially referring to the US electoral campaign in 2017, when the efforts of republic platform users became public, who tried to influence the campaign result by spreading specific fake news on social media platforms, the law reacts to a general fear, that further hate speech attacks endangered the democratic system and the pluralism of opinions in critical discourses. NetzDG was seen as an instrument to protect elementary values of the constitution by introducing a mechanism of control. The act caused the assuasive impression that improper and irritating contributions to the public discourse could be removed easily and the state of a secure space online was recovered.
Doubtful is if the intended effects of the NetzDG really occurred.
By limiting freedom of speech and opinion?
The main point of criticism is that NetzDG itself limits the users´ freedom of speech and opinion. In the discussion about the dangers of hate speech and fake news the potential of social media platforms should be kept clearly in mind. The possibility for people to interact with each other across the borders of various countries must not be underestimated.
Another important fact is that the heads of social media platforms are responsible for the decision about what is to delete. Huge firms and networks are not equipped with the same expertise as lawyers are. In fact they are not able to make a decision in interest of the NetzDG in the way the legislative authority intended them to do. They are representing their economical interests and not the values which ought to be protected by the act.
In contribution to the fact that they are international enterprises with a predominant economic interest, a rational and objective classification of statements might not take place. Rather is the panic that high monetary fines could follow in case of not deleted untrue information, leading to “preventative” elimination of any contribution which could contain a risk. This is seen as a privatization of legislation and has a huge negative impact on the existing legal framework. But the more dangerous effect of overblocking is that it symbolizes a gateway for censorship. Every public statement in social networks which is part of a public discourse is an object of supervision. Not only inapt thoughts are disappearing but also those which are misjudged and in fact can be classified as satire.
The invitation to censorship was even criticized by Human Rights Watch. The organization calls the act of Law an inspiration for other governments to censor statements in interest of the government. Various accounts on social networks have been deleted based on a suspicion. The complete impossibility to take part in a social network limits the freedom of communication in a huge extent.
Also the tight chronological limits contribute to the problem that the decisions about the deletion of data is not representative. Pressure of time makes deliberate decision-making impossible.
Giving such an amount of responsibility to global enterprises leads to the risk of “over-blocking” and the intention, that although the NetzDG is German law, German legislation has not enough control over it´s application.
Another important point is that NetzDG runs the risk of being a result of the same unproved rumors it wants to prevent. Based upon the talking about fake news which influenced the US electoral campaign and upon the fear that the same phenomenon might endanger the German electoral campaign, it follows a one-sided opinion in the public discourse which does in no way display the
Result of a democratic process.
In conclusion the law indicates a great demand of a further analysis of the hate speech and fake news issue. There is no doubt that there is need for action to protect a factional and peaceful discussion. But the NetzDG, containing the risk that this discussion might not even take place any more because participants have to fear the expression of their opinion, is not yet the right measurement.