Graduating from ‘new-school’ – Germany’s procedural approach to regulating online discourse

Abstract

ABSTRACT For some time now, media regulators in Germany and beyond have been trying to cope with the rise of digital intermediaries like social networks and search engines. In this context, the German Network Enforcement Act (‘NetzDG’) has become the epitome of the concept of new-school speech regulation: the increasing co-optation of intermediaries for governmental content moderation – with all its potential harms to free expression and democratic discourse. Contrary to this trend, however, recent legislative measures in Germany, including the Interstate Media Treaty (IMT), suggest that the country is exploring new avenues in digital intermediary regulation. Not only does the new German legislation focus on procedural instead of substantive aspects of content moderation, offering a case study for concepts promoted by recent literature on platform regulation. By introducing a positive bias for certain ‘content of value,’ the country also includes the role of beneficial content in its regulation. This paper analyzes the new German countermovement against new-school regulation and presents its potential impact for future regulatory concepts.