NetzDG reform: Legislators are caught in unsolvable contradictions

Experts have given the federal government’s draft “Amendment of the Network Enforcement Act” (NetzDG) ​​a bad certificate in key points. For operators such as Facebook, Twitter or TikTok, there is not only one conflict that cannot be resolved, the Leipzig media lawyer Marc Liesching explained in a hearing in the Bundestag on Wednesday. The providers could also quickly make themselves punishable.

Liesching alluded to the proposed counter-presentation procedure with the aim of restoring a deleted post that was allegedly criminally relevant. Here there is a collision with the draft law against hate crime and right-wing extremism, which is due to pass through the Bundestag on Thursday. This stipulates that operators, for example, would have to forward potentially inflammatory content to the Federal Criminal Police Office (BKA) after being blocked.

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There is no feedback from there, Liesching explained the impending dilemma. If a user makes use of the put-back claim, the provider may have to put the incriminated content online again. If the author is then convicted of the BKA report in a legal process triggered by it, the network is also responsible for the dissemination of illegal contributions.

Liesching could not present a simple remedy. It was not practical to be able to work on the NetzDG from two sides at the same time. Also the contradiction that an EU member state may only regulate according to the country of origin principle enshrined in the e-commerce directive only against a certain service in the danger of important protection goals like law enforcement “cannot be resolved”.

If the legislator would consistently observe EU law here, “the effectiveness of the NetzDG would be reduced to zero,” said Liesching. The European Court of Justice would certainly enforce this if there were a complaint. Why the government now wants to observe the country of origin principle exclusively on video sharing platforms such as YouTube is not only clear to him by referring to the directive for audiovisual media services, which must also be observed. Only such providers would “no longer generally be obliged to delete incitement and child pornography content”. They would only have to act on the orders of the Federal Office of Justice, which is also difficult for the Federal Council to understand.

In general, according to Liesching, the counter-idea only concerns measures based on the NetzDG. However, the operators applied their community standards to around 80 percent of the blocked posts, which enormously limits the scope of the put-back process. Liesching also sensed an indication “that there could be overblocking” if a provider “goes over there with the AGB lawnmower” and deletes content that would exist according to the NetzDG. The entire blocking procedure has so far been a black box.

In view of the concerns recently raised by the EU Commission regarding the draft against hate crime, the companies concerned would have to check closely whether they “are allowed to implement the revised NetzDG at all”, said the head of regulation at Google Germany, Sabine Frank. She also referred to the contradictions between the obligation to report criminally relevant content and the counter-presentation mechanism. These could prove to be blatant, since the government assumes that the legal opinion between the operator and the BKA in the case of 100,000 complaints could differ within a clear period of time.

In Frank’s opinion, politicians also overlooked victim protection when it comes to put-back. Since users would have to be informed of every single complaint, their email account would be flooded with notifications. “Massive counter-ideas” by “organized groups” are realistic. In addition, there is the risk of not only being identified by names and other characteristics of others, but also from the content and the accompanying circumstances.

Other experts such as Niko Härting from the German Lawyers’ Association (DAV) did not share this concern, since the current complaint procedure could in principle already be misused. Härting, however, urged clarification that the put-back instrument was “not an alternative to civil law”. Many users have already resisted unjustified deletions.

Josephine Ballon of the aid organization HateAid recommended that the legislature improve the procedure. For example, there is still no time limit as to when and who should decide on an application for reinstatement. This should also be done by at least one higher-level internal committee, “not the content moderator, who is under time pressure”. It is also important to have an expanded obligation to provide information against providers or mobile operators, such as in copyright law, in order to be able to identify users behind an IP address as quickly as possible.

Anne Busch-Heizmann of the Digital Society Association warned that the information claim should not result in a prejudice through the networks. Overall, politics runs the risk of promoting internet censorship and surveillance. The police and judiciary should be better equipped so that the state can take more decisive action against cybercrime and do not have to privatize its tasks.

Wolfgang Kreißig from the director’s conference of the state media authorities was concerned about various overlaps, for example with the Media State Treaty. Authorities operating in the same field should be able to coordinate and would need a legal basis for this. The President of the Federal Office of Justice, Heinz-Josef Friehe, praised the initiative because it was “fully coordinated” with the authority and removed some shortcomings in the enforcement of the law.


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