On 14 March 2017, the German Federal Minister of Justice, Heiko Maas, announced a new bill aimed at improving the application of the law to social networks (Entwurf eines Gesetzes zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken; Netzwerkdurchsetzungsgesetz – NetzDG, the Bill). The Bill strengthens the rights of individuals who are affected by ‘hate speech’ or ‘fake news’ placed by third parties on social networks. The Bill also sets out binding standards for an effective and transparent complaint management system and establishes a duty for social networks to issue quarterly reports on their handling of user complaints about criminal content.
Scope of and definitions under Bill
The Bill shall apply to internet platform providers that enable users to make content available to, or share content with, other users (Social Networks). Social Networks with fewer than 2 million registered users in Germany shall be exempt from the obligation to (1) issue reports and (2) establish and implement a complaint management system.
The Bill shall apply to Criminal Content, i.e., content which is in breach of the following sections of the German Criminal Code:
- Section 86 (Dissemination of propaganda material of unconstitutional organisations)
- Section 86a (Using symbols of unconstitutional organisations)
- Section 90 (Defamation of the President of the Federation)
- Section 111 (Public incitement to crime)
- Section 126 (Breach of the public peace by threatening to commit offences)
- Section 130 (Incitement to hatred)
- Section 140 (Rewarding and approving of offences)
- Section 166 (Defamation of religions, religious and ideological associations)
- Section 185 to 187 (Insult; Defamation; Intentional defamation)
- Section 241 (Threatening the commission of a felony )
- Section 269 (Forgery of data intended to provide proof)
Effective complaint management system
Under the Bill, Social Networks are required to implement and maintain an effective complaint management system, and in particular:
- Offer their users a straightforward complaint procedure
- Acknowledge user complaints in due course and assess whether any content complained about is Criminal Content
- Block or delete content which is obviously Criminal Content within 24 hours after receipt of a valid complaint
- Block or delete other Criminal Content within seven days after receipt of a valid complaint
- Inform users about decisions relating to complaints
Duty to issue reports
Social Networks shall be obliged to issue quarterly reports on the handling of user complaints about Criminal Content. The required content of those reports is specified in the Bill, and comprises, in particular, information on the number of user complaints received and details of the personnel responsible for processing the complaints. The reports shall be made publicly available on the internet.
The Bill also requires each Social Network to identify an authorised agent within Germany. The authorised agent shall be responsible for receiving documents relating to administrative fines and to court proceedings before German courts.
Social Networks that do not fully comply with the above requirements shall be subject to administrative fines of up to €50 million.
First reactions to the Bill
Both stakeholders and politicians have already raised a number of different concerns about the Bill. In particular, it has been argued that the deadlines for deletion or blocking of content are too short. Furthermore, many view the Bill as a restriction on the freedom of speech. In the light of the federal elections in Germany on 24 September 2017, it appears rather unlikely that the Bill will be approved by the German Parliament prior to the elections. However, this remains to be seen, as does the form that the Bill might finally take.