What is illegal offline is also illegal online: the German Network Enforcement Act 2017

Abstract

Constitutional democracies traditionally entrust courts with the regulation of speech rather than administrative agencies. According to basic liberal wisdom, judges are equipped best to strike a fair balance between freedom of expression, personality rights and the necessities of a democratic society. Additionally, the one-case-at-a-time-approach of the judiciary seems to be most adequate in order to deal with the highly particularized and dynamic public sphere. Proposals to involve bureaucrats in speech regulation are quickly dismissed as government censorship. However, with the massive proliferation of harmful speech in the Internet, the judicial system is less and less capable to enforce legal standards online. Not only are courts in many jurisdictions still struggling with the adaption of traditional legal doctrines to the internet. They also lack the resources for dealing with the sheer number of cases. To fill this gap, online platforms and intermediaries – Facebook, Twitter, YouTube, etc. – have stepped in and have started to regulate speech on their own. The “new governors of speech,” as Kate Klonick has called them, employ internal content moderation systems which curate and shape online speech and determine, which speech is acceptable and which is not. While the internal speech codes are loosely based on existing legal norms, in particular on U.S. first amendment jurisprudence, they also take into account the economic interests of the platform providers. This development raises serious questions of transparency and democratic accountability. In line with the traditional model, individuals have recently begun to challenge decisions of platform providers before the courts. So far, these complaints have had little or no success. Against this backdrop, a debate has emerged on whether or not to authorize an administrative agency with the online enforcement of free speech principles as defined by constitutional law and interpreted by the courts. In 2017, the German legislator has taken up this idea and has enacted the Netzwerkdurchsetzungsgesetz (“Network Enforcement Law”), which gives the federal bureaucracy the power to evaluate and assess the internal speech policies of major online platforms. The Act applies the idea of “regulated self-regulation” to online speech and threatens to impose severe penalties on large platforms in case of non-compliance. The initial reaction by most constitutional lawyers was quite critical. However, the first practical experiences with the new law are encouraging. On this basis, the paper analyzes the Netzwerkdurchsetzungsgesetz and asks, whether the new law adequately distributes the responsibility for preventing harmful speech between the three major stakeholders: intermediaries, the administration, and the courts. While the German law has its weaknesses, the paper argues that its general approach is convincing. Online platforms have made harmful speech a commodity, which can easily be bought, accessed, and distributed on a global scale – and which warrants a modification of the traditional model of speech regulation.