The digital “militant democracy”: An analysis of platform regulation in Germany and at EU level

Abstract

Germany introduced with the Network Enforcement Act in 2017 and the Interstate Media Treaty in 2021 a novel approach to platform regulation which goes further than in many other jurisdictions that have few or no or comparable measures in place. The new provisions could be seen as either ambitious or as going too far in meddling with the workings of private online actors. This paper examines the relevant measures in light of the notion of a “militant democracy”. Germany has been classified as a militant, democratic state given how its constitution and regulatory frameworks respond to anti-democratic threats. A link can be made between the objective of militant democracy and the German approach to hate speech. The foundation for both is the protection of human dignity, which constitutes an absolute value under the German constitutional law and may not be balanced with other fundamental rights. Examining the Network Enforcement Act and the Interstate Media Treaty, this paper finds that the classification of Germany as a militant democracy holds true in an online context. These measures are direct responses to novel threats to a fruitful public discourse, to the human dignity of individuals and ultimately to the democratic system at large. In its response to these threats, the German legislator adopts a divided approach towards online platforms, regarding the latter both as a potential ‘breeding ground’ for online hate, as well as potential allies when it comes to actions against infringements by individuals. This paper will discuss the nuances and challenges of the German approach and draw a comparison with the relevant provisions of current and future EU law, such as the E-Commerce Directive and the Digital Services Act. Despite sharing many of the same objectives, points of (potential) collision between the German and EU approaches are identified. Ultimately, both legislators have identified the need to act against online hate and online threats to a democracy, including a need to provide a stricter framework for platforms. The legislative measures discussed in this paper are some of the first instruments which pursue these goals in the field of platform regulation and oftentimes precision is still lacking in the formulation of relevant provisions.