NetzDG and the German Precedent for Authoritarian Creep and Authoritarian Learning

40 Pages Posted: 23 Aug 2021

Date Written: August 10, 2021

Abstract

In our digital age, how do governments both combat hate speech and terrorism, while continuing to protect civil liberties? And who makes the rules – platforms themselves? National governments? International institutions? When it comes to establishing policies to protect people on and off-line, many open questions remain.

Governments have largely outsourced content moderation, platform policing, and digital policy to the private sector, often leaving the bulk of the work to the platforms themselves. Against this backdrop, governments have traditionally used two main tools to shape policy: threats of regulation and voluntary compliance programs. However, increasingly frustrated with the ineffectiveness of voluntary commitments, governments are taking a larger role in both defining hate and violent speech online, and clarifying the role that platforms must play.

In 2017, after a series of right-wing extremist attacks linked to online hate speech, Germany passed the “Network Enforcement Act” (NetzDG), with the aim of improving the enforcement of law in social networks. NetzDG requires social media platforms with more than two million users to establish user-friendly complaint-reporting mechanisms, remove manifestly unlawful conduct within 24 hours, and deliver transparency reports twice a year. Importantly, NetzDG forces platforms to proactively report hate speech to law enforcement without a court order under penalty of fine. It is the first example of a European state using an aggressive approach to social media regulation, by making content moderation laws compulsory, rather than voluntary.

This paper examines NetzDG's global proliferation. It argues that NetzDG’s reproduction in various hybrid and authoritarian regimes is doubly problematic––it is both an indication of authoritarian creep into democratic regimes and an instance of authoritarian learning from democratic regimes. Part One describes NetzDG’s history and specificities. Part Two provides background on the challenges of content moderation. It discusses the big questions that inform the debate about NetzDG specifically and digital regulation more broadly. Part Three explores the global repercussions. First, it describes NetzDG as an example of democratic backsliding in Germany. It then uses the case studies of Russia, Singapore, and Turkey to demonstrate how authoritarian and hybrid regimes justify illiberal actions by invoking the practices of liberal democracies. Throughout, this paper underscores the dangers of a one-size-fits-all digital governance regime, urging states to consider the global and long-term effects of their policies.

Keywords: NetzDG, European Law, Comparative Law, Authoritarianism, Technology & Law, Technology Policy, Internet Governance

JEL Classification: O33, K33, K10

Suggested Citation

Canaan, Isabelle, NetzDG and the German Precedent for Authoritarian Creep and Authoritarian Learning (August 10, 2021). Available at SSRN: https://ssrn.com/abstract=3908440 or http://dx.doi.org/10.2139/ssrn.3908440

Isabelle Canaan (Contact Author)

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027

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