Internet Police? An Attempt to Push Back Online Hate Speech through Germany’s Network Enforcement Act (NetzDG)

Abstract

In 2017, Germany adopted the so-called Network Enforcement Act (Netzwerkdurchsetzungsgesetz, NetzDG), which aims to curb hate speech on online platforms. The law obliges social media platforms used by at least 2 million users in the country to remove online content that constitutes hate speech within 24 hours, or risk fines of up to €5 million. From the very beginning, the law was met with numerous criticisms both in the scientific and public discourse, which mostly highlighted the fact that the regulation restricts freedom of speech and that it forces social media platforms to pre-censor the content posted by users. The amendments later adopted by the German Parliament in relation to the NetzDG – such as the obligation for platforms to forward certain data of users who post illegal content to the German Federal Criminal Office (Bundeskriminalamt, BKA) – sparked even more heated debates. Especially the new legislation expanding the online surveillance powers of the German police authorities was criticized from a data protection point of view, or, for example, that since 2016 the BKA has been conducting coordinated action days and simultaneous house searches in several German federal states at the homes of users who may have posted content deemed hate speech on online platforms. As online platforms have become a digital public sphere, restrictions on discourse or content can only be justified in specific cases, as open, free and unrestricted dialogue is essential for the development of a democratic public sphere – also in the online space. Therefore, the aim of this paper is to present the theoretical starting points and the content-regulatory framework of the NetzDG, to discuss the concerns that it raises for freedom of expression, whether it really curbs online hate speech and what role the public authorities’ action, made possible by law, can play in this, and whether the BKA has indeed started to act as a kind of “internet police” by virtue of the mandate given by the NetzDG.