The German Act on Improving Law Enforcement on Social Networks (NetzDG): A Blunt Sword?

Abstract

On 1 October 2017, the German law with the rather cumbersome title Netzwerkdurchsetzungsgesetz, which literally translates to “Network Enforcement Act”, entered into force. This federal law aims to improve law enforcement in social networks by calling providers of social net-works to account in order to act on online speech that is punishable under domestic criminal law. During the legislative process and in the materials accompanying the law, the legislator repeatedly stressed that the law is necessary to respond to a (perceived) proliferation of hate speech and fake news on social media. Facebook, one of the very few social networks to which the Act will apply, expressed its concerns harshly during the legislative proceedings: the bill was deemed imprecise, unconstitutional and a threat for freedom of opinion in Germany. The bill did not only stir criticism from social media companies, also many legal scholars and the scientific research service of the German Parliament raised their concerns. Against the severe criticism, the Act also attracted attention beyond Germany with in particular the United Kingdom and France eyeing on its impact in practice. With the first anniversary of the NetzDG, this paper will look at the past, present and future of the highly controversial law and examine the impact of the law that has been rated as to seriously impair human rights online when it entered into force.

Keywords: Freedom of Speech, Freedom of Expression, Germany, NetzDG, Social Networks, Hate Speech, Fake News