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02/01/2018 | Wissenschaftliche Standpunkte

Forum Privatheit" expert panel defends network enforcement law

The Network Enforcement Act is much better than its reputation - this is the conclusion of the scientific expert panel "Forum Privatheit". It has reviewed the individual points of criticism of the law, which has been in force since January 1, 2018, and comes to the conclusion that they are largely inaccurate. Even if details can be debated, the law is on the right track, according to the authors of the "Policy Paper." It helps to enforce against large social networks that they fulfill their social responsibility.

Especially in large social networks such as Twitter or Facebook, there are increasingly hateful statements against individuals and minorities that fulfill the criminal offences of insult, defamation or incitement to hatred. Although the providers of information platforms have been obliged for 20 years to remove such statements if they are specifically pointed out to them, the operators of social networks have so far not complied with this obligation at all or not sufficiently, despite numerous demands from politics and society.

In order to better enforce this legal obligation, since the beginning of the year the Network Enforcement Act (NetzDG) has required operators of social networks with more than 2 million subscribers in Germany to set up an effective complaints management system and to report semi-annually on their handling of complaints. In response to a complaint, they must delete or block content that is "obviously" punishable within 24 hours. They must decide on other punishable content within seven days. If they fail to set up an effective complaints management system or fail to comply with their reporting obligations, they face a fine of up to EUR 50 million. The NetzDG does not provide for a fine for an incorrect decision in an individual case, such as failure to remove criminal content.

No overblocking through the NetzDG

Nevertheless, the strongest criticism is directed against the NetzDG leading to "overblocking". Network operators would rather block reported content than continue publishing it for fear of fines. However, the legal departments of the operators know full well that they do not have to fear fines if they wrongly do not block a punishable content in an individual case. "Facebook or Twitter do not react out of 'fear'. The few spectacular wrong decisions were probably made more out of an interest in discrediting the new regulation, which is very costly for them to set up a complaints management system," suspects "Forum Privatheit" spokesman and University of Kassel legal scholar Prof. Dr. Alexander Roßnagel. "The criticism of 'overblocking' supports this interest."  

Not an attack on freedom of expression

Blocking a post on a social network is indeed an encroachment on freedom of expression. But this must be weighed against the rights of the individual or group that are violated by the expression. If it contains a punishable defamatory criticism, formal insult or incitement of the people, freedom of expression must take a back seat to the protection of these rights. "Critics often fail to realize that the NetzDG does not ban any particular opinion. It merely makes it easier to remove content that is prohibited under criminal law and was already punishable even before the NetzDG came into force," Roßnagel said.

No shifting of state tasks to private providers

The NetzDG also does not shift state tasks to private providers or give them authority to censor, as critics of the NetzDG claim. Rather, since 1997, every provider of an information platform has been legally obligated to remove third-party information with criminal content if it is reported to him. Through the NetzDG, this obligation can now actually be enforced against large platform operators. The standard for what must be deleted is not set by social network operators. Only German criminal laws are authoritative.

No deadlines that are too short - on the contrary

There is also criticism of the fact that "obviously illegal" content must be blocked within 24 hours. This obligation is considered too strict. However, it only applies if the punishability of serious violations of personality rights or clear incitement of the people can be recognized without in-depth examination. Then a reaction within 24 hours is reasonable. In case of doubt, according to the explanatory memorandum to the law, it is to be assumed that the punishability is not "obvious". The criticism also fails to recognize the need for protection of those affected when they are attacked with content that is obviously punishable. "From a psychological point of view, this time limit is even far too long to clear up the misinformation. It has been empirically proven that even information that later proves to be false or incorrect is not forgotten or overwritten in memory with the correct information," points out psychology professor Nicole Krämer of the University of Duisburg-Essen, also a member of the "Forum Privatheit" expert panel. "In addition, subsequent posts are oriented to the tenor of the debate, so that an illegal content is very likely to result in further postings with a similar pattern. It would therefore be better to oblige network operators, in the presence of 'obviously' illegal content, to investigate, decide and act immediately upon receipt of the complaint."

Important step in the fight against criminal false messages

"The NetzDG is an important step towards effectively combating criminal false news and the endangering of public democratic discussion. It now also forces the operators of large social networks to fulfill their social responsibility, which has always existed and has been neglected until now," Roßnagel said. "The law enables victims of aggressive insults, devaluations or defamations to enforce their rights free of charge and comparatively quickly - without lawyers, fees and costs."

Create capacity to enforce the law

According to the research of the "Forum Privatheit," improvements to the law are necessary to improve the protection of authors whose contributions are unjustly blocked. The civil law legal protection options for those affected and interim legal protection against the aggressor must also be improved. Roßnagel clarifies: "However, it would be a big mistake to assume that the state is already taking sufficient action against disinformation, defamation and discriminatory incitement with the NetzDG. In addition, it must also create the capacities to actually enforce the law. Even more important than stopping the continuation of violations is bringing offenders to swift and effective criminal proceedings."

The policy paper, "The Network Enforcement Act," provides basic information about the content and operation of the law, as well as justified and unjustified criticisms of it. It can be found at: http://www.forum-privatheit.de/forum-privatheit-de/publikationen-und-downloads/veroeffentlichungen-des-forums/positionspapiere-policy-paper/Policy-Paper-NetzDG.pdf


In the Forum Privacy, which is funded by the BMBF, experts from seven scientific institutions are addressing issues relating to the protection of privacy in an interdisciplinary manner. The project is coordinated by Fraunhofer ISI. Other partners include Fraunhofer SIT, the University of Duisburg-Essen, the Scientific Center for Information Technology Design (ITeG) at the University of Kassel, Eberhard Karls University Tübingen, Ludwig Maximilian University Munich, and the Independent Center for Data Protection Schleswig-Holstein.


Speaker "Forum Privatheit":
Prof. Dr. Alexander Roßnagel
University of Kassel
Project Group for Constitutionally Compatible Technology Design (provet)
Research Center for Interdisciplinary Technology Design (ITeG)
Tel: 0561/804-3130 or 2874
E-Mail: a.rossnagel[at]uni-kassel[dot]de

Project coordination "Forum Privatheit":
Dr. Michael Friedewald
Fraunhofer Institute for Systems and Innovation Research ISI
Competence Center New Technologies
Tel.: 0721 6809-146
E-Mail: Michael.Friedewald@isi.fraunhofer.de

Press and Communication "Forum Privacy":
Barbara Ferrarese, M.A.
Fraunhofer Institute for Systems and Innovation Research ISI
Tel.: 0721 6809-678
E-mail: presse[at]forum-privatheit[dot]de

Forum "Privacy and Self-Determined Living in the Digital World"
www.forum-privatheit.de/forum-privatheit-de/index.php
Twitter: @ForumPrivacy