Germany: The Act to Improve
Enforcement of the Law in
Social Networks
August 2017

Germany: The Act to Improve Enforcement of the Law in Social Networks

Executive summary
In August 2017, ARTICLE 19 analysed the Act to Improve Enforcement of The Law in Social
Networks (the Act), which the Federal Council (Upper Chamber) of the German Parliament
approved on 7 July 2017, and is expected to be published in the Gazette shortly. The Act willenter into force on 1 October 2017. ARTICLE 19 analysed the earlier draft of the Act.
ARTICLE 19 is deeply concerned that the Act will severely undermine freedom of expression inGermany, and is already setting a dangerous example to other countries that more vigorously apply
criminal provisions to quash dissent and criticism, including against journalists and human rights
defenders.
The Act establishes an intermediary liability regime that incentivises, through severe
administrative penalties of up to 5 million Euros,
within time periods of 24 hours and 7 days respectively. As
regulatory offences, it is possible for the maximum sanction to be multiplied by ten to 50 million
Euros.
Though the Act does not create new content restrictions, it compels content removals on the basisof select provisions from the German Criminal Code. Many of these provisions raise serious
broad concepts ofamation and insult. Deputising privatecompanies to engage in censorship on the basis of these provisions is deeply troubling, as theyshould not be criminal offences in the first place.
We are particularly concerned that the obligation to remove or block content applies without any
prior determination of the legality of the content at issue by a court, and with no guidance toSocial Networks on respecting the right to freedom of expression. Such private enterprises are notcompetent to make these complex factual and legal determinations, and the Act provides norecourse to users whose content is blocked or deleted unfairly. Though the Act creates a systembodies for unlawfulcontent , this recognition is conditional and held by an administrative body not insulated frompolitical influence.
The likelihood of Social Networks being over-vigorous in deleting or blocking content iscompounded by the legal uncertainty pervading the Act.
content removal and blocking processes will be considered systemic enough to attract
administrative liability is unclear, and ambiguity in the definitions of key terms (including ofis likely to create an environment wherein lawful content is routinely blocked or
removed as a precaution. The-regulation
limited oversight provided by the Administrative Courts does nothing toaddress over-blocking, and provides little protection or due process to Social Networks that in goodfaith refrain from blocking or removing content in the interests of respecting freedom of
expression.

Summary of recommendations
1. The Act should be repealed, with consideration given to retaining Section 2 on reporting
requirements in alternative legislation to increase transparency around online content
moderation by private actors;
2. The German Criminal Code should be comprehensively revised to remove offences that are
not compatible with international human rights law on freedom of expression, including but
not limited to those listed in the Act.

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Germany: The Act to Improve Enforcement of the Law in Social Networks

Table of contents
Introduction .................................................................................................................................. 4
International human rights standards .............................................................................................. 5
The right to freedom of expression ............................................................................................... 5
The right to equality ................................................................................................................... 6...................................................................................................... 6
Obligation to prohibit .............................................................................................................. 6
Permissible limitations ............................................................................................................ 8
Lawful expression ................................................................................................................... 8
Freedom of expression online and intermediary liability ................................................................. 8
Self-regulatory models for social media ...................................................................................... 11
Analysis of the Act ....................................................................................................................... 12........................................................................................................ 12.................................................................................................................. 13
Handling complaints about unlawful content .............................................................................. 16
Processes for complaining about unlawful content ................................................................... 16
Removal and blocking ........................................................................................................... 17-regulat........................................................................ 20

Reporting requirements ............................................................................................................ 22
Individual responsibility for offences committed online ............................................................... 22
Amendments to the Telemedia Act ............................................................................................ 23
Conclusion .................................................................................................................................. 24
About ARTICLE 19 ...................................................................................................................... 25

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Germany: The Act to Improve Enforcement of the Law in Social Networks

Introduction
In this legal analysis, ARTICLE 19 reviews the German Act to Improve Enforcement of the Law in
Social Networks (the Act)1 for its compatibility with international human rights law. According to
the Act, it will enter into force on 1 October 2017.
ARTICLE 19 previously expressed serious concerns with earlier drafts of the Act.2 This analysis is
an update to our analysis of the previously published Bill, pointing out significant differences thatwere made in the later stages of the legislative process.
to those concerns,3 we reiterate in this analysis why, notwithstanding changes made, the Act.
ARTICLE 19 has extensive experience in analysing laws pertaining to the right to freedom of
expression online,4The issue of intermediary liability forcontent created by third parties is a recurring issue and an area where we see increasing pressure
on private companies to control information flows. Recently, we have expressed concerns at
attempts in this regard at the European Union level,5 which the Act emulates and expands upon.
Our policy position on this is. 6 The typesof content limitation foreseen in the Act
7
defamation,8 and national security.9
The Act
imposes duties on them, inter alia, to adopt particular complaints procedures regarding content
that violates provisions of the German Criminal Code, to delete or block access to that content,
and to report on their practices in this regard periodically to administrative authorities. Failure toabide by these conditions results in the imposition of severe administrative fines.
This analysis sets out relevant international human rights law standards before examining the main
freedom of expression concerns raised by the Act. ARTICLE 19 finds that the Act does not comply
with international human rights law, and recommends its full repeal.
We also urge the German Government to bring its legislation into full compliance withinternational freedom of expression standards, in particular the Penal Code, and we stand ready toprovide further assistance in this process.

1

This analysis reviews a consolidated English version of the Act. The analysis assumes the differences between the
English and German versions of the Law reflect errors in the English version. In the English version, Section 1(3)omits a reference included in the German version to Section 201(a) of the German Penal Code. In numerous
provisions, the term in German
responsibility for the accuracy of the translation or for comments made on the basis of any inaccuracies in thetranslation.
2
ARTICLE 19, Germany: draft bill on social networks raises serious free expression concerns, 26 April 20173
The government of Germany responded to a series of criticisms offered by multiple freedom of expression and
4See, for example, ARTICLE 19, Myanmar: Telecommunications Law, Legal Analysis, March 2017.
ARTICLE 19, EU Commission Code of Conduct for Countering Illegal Hate Speech Online and the Framework
Decision, June 2016.
6
ARTICLE 19, Internet Intermediaries: Dilemma of Liability, 29 August 2013.
7
ARTICLE 19, Hate Speech Explained: A Toolkit, December 2015.
8
ARTICLE 19, Defining Defamation: Principles on Freedom of Expression and Protection of Reputation, 2nd
Edition, February 2017.
9
ARTICLE 19, Johannesburg Principles on National Security, Freedom of Expression and Access to Information,
1996.
5

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Germany: The Act to Improve Enforcement of the Law in Social Networks

International human rights standards
mments on the Act are informed by international human rights law andstandards, in particular regarding the mutually interdependent and reinforcing rights to freedom of
expression and equality.

The right to freedom of expression
The right to freedom of expression is protected by Article 19 of the Universal Declaration of
Human Rights (UDHR),10 and given legal force through Article 19 of the International Covenant on
Civil and Political Rights (ICCPR).11
The scope of the right to freedom of expression is broad. It requires States to guarantee to all
people the freedom to seek, receive or impart information or ideas of any kind, regardless of(HRCommittee), the treaty body of i
ICCPR, has affirmed that the scope of the right extends to the expression of opinions and ideasthat others may find deeply offensive,12 and this may encompass discriminatory expression.
While the right to freedom of expression is fundamental, it is not absolute. A State may,
exceptionally, limit the right under Article 19(3) of the ICCPR, provided that the limitation is: Provided for by law; any law or regulation must be formulated with sufficient precision to
enable individuals to regulate their conduct accordingly.
In pursuit of a legitimate aim, listed exhaustively as: respect of the rights or reputations ofothers; or the protection of national security or of public order (ordre public), or of publichealth or morals;



Necessary in a democratic society, requiring the State to demonstrate in a specific andindividualised fashion the precise nature of the threat, and the necessity and proportionalityof the specific action taken, in particular by establishing a direct and immediate connection
between the expression and the threat.13

Thus, any limitation imposed by the State on the right to freedom of expression, including to limit,
ee-part test. Further, Article
20(2) ICCPR provides that any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence must be prohibited by law (see below).
At the European level, Article 10 of the European Convention on Human Rights (ECHR)14 protects
the right to freedom of expression in similar terms to Article 19 of the ICCPR, with permissible
limitations set out in Article 10(2). 15 Within the European Union, the right to freedom of
10

Through its adoption in a resolution of the UN General Assembly, the UDHR is not strictly binding on states.
However, many of its provisions are regarded as having acquired legal force as customary international law since its
adoption in 1948; see Filartiga v. Pena-Irala, 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd circuit).
11
The ICCPR has 167 States parties, including Germany.
12
See HR Committee, General Comment No. 34 on Article 19: Freedoms of opinion and expression,
CCPR/C/GC/34, 12 September 2011, para 11.
13
Ibid., para. 22.
14
Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 September 1950.
15
Article 10 (1) of the ECHR: Everyone has the right to freedom of expression. This right shall include freedom tohold opinions and to receive and impart information and ideas without interference by public authority andregardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television
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Germany: The Act to Improve Enforcement of the Law in Social Networks

expression and information is guaranteed in Article 11 of the Charter of Fundamental Rights of theEuropean Union.

The right to equality
and Article 2 provides for the equal enjoyment of the rights and freedoms contained in the,discrimination. These guarantees are given legal force in Articles 2(1) and 26 of the ICCPR,
obliging States to guarantee equality in the enjoyment of human rights, including the right tofreedom of expression, and equal protection of the law.
At the European level, the ECHR prohibits discrimination in Article 14 and more broadly inProtocol No. 12.

hatred towards an individual or group on the basis of a protected characteristic can be divided into
three categories, distinguished by the response international human rights law requires fromStates:16
requires States to prohibit, including
through criminal, civil, and administrative measures, under both international criminal law
and Article 20(2) of the ICCPR;

may prohibit to protect the rights of others under
Article 19(3) of the ICCPR, such as discriminatory or bias-motivated threats or harassment;

nevertheless raises concerns in terms of intolerance anddiscrimination, meriting a critical response by the State but which should be protected fromrestriction under Article 19(3) of the ICCPR.

Obligation to prohibit
Article 20(2) of the ICCPR obliges
Comment No. 34, the HR Committee stressed that while States are required to prohibit such
expression, these limitations must nevertheless meet the strict conditions set out in Article
19(3).17
The Rabat Plan of Action,18 adopted by experts following a series of consultations convened by the
UN Office of the High Commissioner for Human Rights (OHCHR), advances authoritative
conclusions and recommendations for the implementation of Article 20(2) ICCPR:19or cinema enterprises; Article 10 (2), The exercise of these freedoms, since it carries with it duties andresponsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety,
for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation orrights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary.
16
For a full explanation of
op.cit.
17
HR Committee, General Comment No. 34, 21 June 2011, CCPR/C/GC/34, para. 52.
18
The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence, A/HRC/22/17/Add.4, Appendix, adopted 5 October 2012.
19
The Rabat Plan of Action has been endorsed by a wide range of special procedures of the UN Human Rights
Council, see, for example: Report of the Special Rapporteur on protecting and promoting the right to freedom of
opinion and expression on hate speech and incitement to hatred, A/67/357, 7 September 2012; Report of the
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Germany: The Act to Improve Enforcement of the Law in Social Networks



Incitement: prohibitions should only focus on the advocacy of discriminatory hatred that
constitutes incitement to hostility, discrimination, or violence from the audience, rather than
the advocacy of hatred without regard to its tendency to incite action by the audienceagainst a protected group.



Six-part threshold test: to assist in judicial assessments of whether a speaker intends and iscapable of having the effect of inciting their audience to violent or discriminatory action
through the advocacy of discriminatory hatred, six factors should be considered:o Context: the expression should be considered within the political, economic, and social
context prevalent at the time it was communicated, for example the existence or historyof conflict, existence or history of institutionalised discrimination, the legal frameworkand the media landscape;o Identity of the speaker: the position of the speaker as it relates to their authority or
influence over their audience, in particular if they are a politician, public official,religious or community leader;o Intent of the speaker to engage in advocacy to hatred; intent to target a protected groupon the basis of a protected characteristic, and knowledge that their conduct will likely
incite the audience to discrimination, hostility or violence;o Content of the expression: what was said, including the form and the style of theexpression, and what the audience understood by this;o Extent and magnitude of the expression: the public nature of the expression, the meansof the expression and the intensity or magnitude of the expression in terms of its
frequency or volume;o Likelihood of harm occurring, including its imminence: there must be a reasonableprobability of discrimination, hostility or violence occurring as a direct consequence of
the incitement.

Protected characteristics:
with an open-ended list of protected characteristics, supports an expansive interpretation of
the limited protected characteristics in Article 20(2) of the ICCPR to provide equal
protection to other individuals and groups who may similarly be targeted for discriminationor violence on the basis of other recognised protected characteristics.

Proportionate sanctions:
incitement.20 Civil and administrative penalties will in many cases be most appropriate, withcriminal sanctions an extreme measure of last resort.

The Committee on the Elimination of all forms of Racial Discrimination (the CERD Committee) has
also based their guidance for respecting the obligation to prohibit certain forms of expression
under Article 4 of the ICERD on this test.21

Special Rapporteur on freedom of religion or belief on the need to tackle manifestations of collective religious
hatred, Heiner Bielefeldt, A/HRC/25/58, 26 December 2013; Report of the Special Rapporteur on contemporary
forms of racism, racial discrimination, xenophobia and related intolerance on manifestations of racism, racial
discrimination, xenophobia and related intolerance on manifestations of racism on the Internet and social media,
Mutuma Ruteere, A/HRC/26/49, 6 May 2014; and the contribution of the UN Special Advisor on the Prevention of
Genocide to the expert seminar on ways to curb incitement to violence on ethnic, religious, or racial grounds insituations with imminent risk of atrocity crimes, Geneva, 22 February 2013.
20
Human Rights Committee, General Comment 11: prohibition of propaganda for war and inciting national, racial
or religious hatred (Art. 20), 29 July 1983, para. 2.
21
UN Committee on the Elimination of Racial Discrimination, General recommendation No. 35: Combating racist
hate speech, 26 September 2013, paras. 15 - 16. The CERD Committee specifies that five contextual factors
should be taken into account: the content and form of speech; the economic, social and political climate; theposition or status of the speaker; the reach of the speech; and the objectives of the speech. The CERD Committee
also specifies that States must also consider the intent of the speaker and the imminence and likelihood of harm.
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At the European level, the ECHR does not contain any obligation on States to prohibit any form of
expression, as under Article 20(2) of the ICCPR. However, the European Court of Human Rights(European Court) has recognised that certain forms of harmful expression must necessarily be
restricted to uphold the objectives of the Convention as a whole.22 The Court has also exercised
particularly strict supervision in cases where criminal sanctions have been imposed by the Stateand in many instances it has found that the imposition of a criminal conviction violated the
proportionality principle.23 Recourse to criminal law should therefore not be seen as the default
response to instances of harmful expression, if less severe sanctions would achieve the same
effect.
on combating certain forms and expressions ofracism and xenophobia by mean
) requires States to sanction
racism and xenophobia throughestablishes four categories of incitement to violence or hatred offences that States are required tocriminalise with penalties of up to 3 years imprisonment, including condoning, denying or grossly
trivialising historical crimes. States are afforded the discretion of choosing to punish only conduct

legitimately be restricted. These obligations are broader and more severe in the penalties
prescribed than the prohibitions in Article 20(2) of the ICCPR, and do not comply with therequirements of Article 19(3) of the ICCPR.24

Permissible limitations
advocate hatred to a broader audience with the purpose of inciting discrimination, hostility or
violence. This includes discriminatory threats of unlawful conduct, discriminatory harassment, anddiscriminatory assault. These limitations must still be justified under Article 19(3) of the ICCPR.

Lawful expression
Expression may be inflammatory or offensive, but not meet any of the thresholds described above.
This expression may be characterised by prejudice, and raise concerns over intolerance, but does
not meet the threshold of severity, at which restrictions on expression are justified. This also
includes expression related to denial of historical events, insult of State symbols or institutions
and other forms of expression that some individuals and groups might find offensive.
This does not preclude States from taking legal and policy measures to tackle the underlying
prejudices of which this category of hate speech is symptomatic, or from maximising
opportunities for all people, including public officials and institutions, to engage in counterspeech.

Freedom of expression online and intermediary liability
International law
At the international level, several human rights bodies and mechanisms have developed soft law
guidance on intermediary liability.

22

European Court, Erbakan v. Turkey, App. No. 59405/00 (2006), para. 56 or Gündüz v. Turkey, App. No.
35071/97 (2004), para. 22.
23
European Court, Jersild v. Denmark, App No 15890/89 (1992), para. 35.
24
For a full analysis, see ARTICLE 19, Submission t,
December 2013.
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Germany: The Act to Improve Enforcement of the Law in Social Networks

The UN Human Rights Council (HRC)25

The HR Committee has also made clear that limitations
on electronic forms of communication or expression disseminated over the Internet must be
justified according to the same criteria as nonabove.26
While international human rights law places obligations on States to protect, promote and respecthuman rights, it is widely recognised that business enterprises also have a responsibility to respecthuman rights.27 Importantly, the UN Special Rapporteur on freedom of opinion and expression(Special Rapporteur on freedom of expression) has long held that censorship measures should
never be delegated to private entities. 28 In his June 2016 report to the HRC, 29 the Special
Rapporteur on freedom of expression, David Kaye, enjoined States not to require or otherwisepressure the private sector to take steps that unnecessarily or disproportionately interfere withfreedom of expression, whether through laws, policies, or extralegal means. He further recognised-equipped to make determinations of content
illegality, 30 and reiterated criticism of noquestionable claims and for failing to provide adequate protection for the intermediaries that seek
to apply fair and human rights-sensitive standards to content regulation,or over-removal. 31
The Special Rapporteur on freedom of expression recommended that any demands, requests andother measures to take down digital content must be based on validly enacted law, subject toexternal and independent oversight, and demonstrate a necessary and proportionate means ofachieving one or more aims under Article 19 (3) of the ICCPR.32
In their 2017 Joint Declaration on freedom of expression, fake news , disinformation andpropaganda, the four international mandates on freedom of expression expressed concern at
33

The Joint Declaration emphasises that[I]ntermediaries should never be liable for any third party content relating to those services
unless they specifically intervene in that content or refuse to obey an order adopted inaccordance with due process guarantees by an independent, impartial, authoritative
oversight body (such as a court) to remove it and they have the technical capacity to do
that.

They also outlined the responsibilities of intermediaries regarding the transparency of, and needfor, due process in their content-removal processes.

25

HRC Resolution 20/8 on the Internet and Human Rights, A/HRC/RES/20/8, June 2012.
General Comment No. 34, op cit., para 43.
27
Guiding Principles on Business and Human Rights: I
26

Council endorsed the guiding principles in HRC resolution 17/4, A/HRC/RES/17/14, 16 June 2011.
28
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion andexpression, 16 May 2011, A/HRC/17/27, paras. 75-76.
29
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion andexpression, 11 May 2016, A/HRC/32/38; para 40 44,
30

Ibid.
Ibid., para. 43.
32
Ibid.
31

33

, adopted by theUnited Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security andCo-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States(ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, 3 March 2017.
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European law
At the European level, the approach to intermediary liability has not always accorded sufficient
protections to freedom of expression.
The E-Commerce Directive requires that Member States shield intermediaries from liability for
illegal third party content where the intermediary does not have actual knowledge of illegal activity
or information and, upon obtaining knowledge, acts expeditiously to remove or disable access tothe information.34 The E-Commerce Directive prohibits States from imposing general obligations
on intermediaries to monitor activity on their services.35 The regulatory scheme under the Directive
has given rise to so-ands, which have been sharply criticisedby the special mandates on freedom of expression for their lack of clear legal basis and basic
procedural fairness.
The limited shield from liability for intermediaries provided by the E-Commerce Directive has beenfurther undermined by the approach of the European Court of Human Rights. In Delfi AS v.
Estonia, the Grand Chamber of the European Court found no violation of Article 10 of the ECHR
the website by an anonymous third party, even without notice being
provided. 36
contradicts the requirement of actual notice in Article 14(1) of the E-Commerce Directive,
necessitating intermediaries to actively monitor all content to avoid liability in relation to specificforms of content, thus additionally contradicting Article 5 of the E-Commerce Directive.37
Decisions subsequent to Delfi AS appear to confine the reasoning to. In Magyar Tartalomszolgáltatók Egyesülete and/et Index.hu Zrt v. Hungary, 38 theEuropean Court found a violation of Article 10 of the ECHR where a self-regulatory body ofInternet content providers and an owner of an online news portal were held liable for defamatory
comments posted by a third party, which the parties removed on receipt of notice (in this instance,
the issuance of legal proceedings against them). More recently, the European Court rejected as
inadmissible a complaint that the domestic courts
privacy by refusing to hold a non-profit association liable for defamatory comments posted to theirwebsite by a third party. The Court noted thatthreats and were removed upon notice (though a formal notice-and-takedown was not in place).39
The position and resources of the intermediary were also relevant factors. 402016), developed in collaboration with some of the major information technology companies,
constitutes a (nonCertain Forms and Expressions of Racism andintergovernmental organisations) are increasing pressure on private actors to engage in censorshipof content without any independent adjudication on the legality of content in issue.

34

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic commerce, in the Internal Market, Article 14(1).
35Ibid., Article 5.
36
Grand Chamber of the European Court, Delfi AS v. Estonia, No. 64569/09, 16 June 2015.
37
Ibid.,
Delfi AS v Estonia Case
Comment: Strasbourg Undermines Freedom of Expression, ARTICLE 19 Join the Debate, 1 October 2015.
38
European Court of Human Rights, Magyar Tartalomszolgáltatók Egyesülete and/et Index.hu Zrt v. Hungary, No.
22947/13, 2 February 2016
39
European Court of Human Rights, Pihl v. Sweden, No. 74742/13, 9 March 201740
For further analysis, see: Dirk Voorhoof, Pihl v. Sweden: non-profit blog operator is not liable for defamatory, Strasbourg Observers, 20 March 2017.
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In short, the law on intermediary liability remains legally uncertain in Europe, with tensions
be-Commerce Directive, as
well as with the guidance of the international freedom of expression mandates.

Self-regulatory models for social media
elf-regulation to refer to a voluntary agreement between thestakeholders of a sector, civil society and the public, to set up an external, independent body,tasked with supporting and promoting ethical standards through recommendations and theapplication of light, non-pe
councils are a typical example of such a mechanism.
-regulation could
provide an interesting model to approach the issue of content moderation on social media
platforms, but only where such bodies meet certain requirements.41 These requirements aim at
ensuring that self-regulation is meaningful. As such, self-regulatory mechanisms should act asboth a defender of the rights of members of the profession, as well as a guiding force for theirconduct and an adjudicator for complaints received from members of the public.
Self-regulatory bodies should therefore: Be independent from government, commercial and special interests;
 Be established via a fully consultative and inclusive process major constitutive elements of
their work should be elaborated in an open, transparent and participatory manner that allows
for broad public consultation;
 Democratic and transparent in their selection of members and decision-making; Be composed of a membership with broad representation, 42 including of civil society, toensure independence;43
 Have the power to impose only non Work in the service of the public interest, be transparent and accountable to the public.
Any self-regulatory body needs to adopt a code of ethics for the profession or sector it seeks toregulate. It also needs a robust complaint mechanism and clear procedural rules to determine if
ethical standards were breached in individual cases. In addition, such a body can also play animportant role in promoting the knowledge and understanding of ethical rules throughout thesector or profession: they can do so by adopting and disseminating recommendations andguidelines, or offering trainings to their members.
While a certain form of legal underpinning of self-regulation may be compatible with international
human rights law on freedom of expression, this must not undermine the independence andeffectiveness of self-regulatory bodies.

41

See, e.g. ARTICLE 19, Freedom And Accountability Safeguarding Free Expression Through Media SelfRegulation, March 2005.
42
In case of press self-regulation, this should include journalists, media owners and members of the public.
43
For press self-regulatory bodies, these should include sanctions such as the publication of a correction or an
apology. They should not be entitled to fine or ban media outlets or exclude individual members from theprofession.
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Analysis of the Act
ARTICLE 19 finds that the Act contains various provisions that do not meet international
standards on the right to freedom of expression, and create a serious danger of further
incentivising the over-removal of expression that should be considered lawful under international
human rights law.

Section 1(1) of the Act
service providers which,for profit-making purposes, operate Internet platforms which are designed to enable users to share
any content with other users or to make such content available to the publicjournalistic or editorial content, the responsibility for which lies with the service provider itself .
Section 1(2) of the Act provides that obligations in relation to reporting (Section 2) and handlingcomplaints (Section 3) apply only to Social Networks with more than 2 million users in the Federal
Republic of Germany.
ARTICLE 19 finds that t
uncertainty about who the duties in the Act apply to. This is in violation of the requirement oflegal certainty under the first prong of the three-part test under Article 19(3) of the ICCPR and
Article 10(2) of the ECHR (see above).
In particular:For profit-making purposes it is not clear how
platforms are distinguishedfrom not-for-profit platforms, and what criteria apply in making this determination.
orto the public: these terms seemingly bring a rangeof platforms that allow the posting of third party contributions, or that connect to suchcontent, within the scope of the law. There is no requirement for the content to be publicly
available.
captured by this definition. Gaming platforms that enable interaction between users,
websites for instant messaging or email, sites with customer/user reviews of goods orservices, platforms for collaborative working, and platforms that enable file-sharing or
remote storage, may
mak[ing] such content
content;ic

this term, which determines which tele media providers are exempt
defined and therefore potentially subject to various
interpretations. International human rights law advances an expansive and functional (rather
than formal) understanding of journalism , which would bring many online platforms partlyor wholly within the potential scope of this exclusion. 44 It also is unclear whether thisic cod-party content for which
responsib
may also incentivise platforms with journalist content to remove comment and discussion

44

HR Committee, General Comment No.34, op. cit., para 44: Journalism is a function shared by a wide range ofactors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms
of self
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functions or subject them to restrictive prior screening, limiting space for freedom of
expression online.


Two million registered users: the Act
registeredno guidance on how their number will be measured. Section 1(2) is slightly clearer than inprevious versions, as it now specifies that users
Federal Republic of Germany. Nevertheless, technical questions about how to count-based IPs or
use VPNs, mean that Social Networks face uncertainty as to whether the Act applies to them.
Additionally, this exemption does not apply to obligations under Section 5 (requiring theappointment of representatives in Germany), bringing Social Networks of all sizes within thescope of punitive measures under Section 4(1)(7).

The ambiguity in the definition of Social Network within Sections 1(1) and 1(2) of the Act makes
uncertain the scope of duties provided for in subsequent sections. For those provisions that havethe effect of limiting freedom of expression througheasily predict whether or not these provisions apply to them.

UnlawfulSection 1(3) of the Act
unlawful
provisions selected from the German Criminal Code (GCC).45

a number ofThis provision now excludes from the scope of the Act two criminal offences that had been
included in previous drafts, namely: criminal defamation of the President of the Federation(Section 90 GCC); and criminal defamation of the state and its symbols (Section 90a GCC). These
two provisions were against international human rights law, and we welcome their removal.
Nevertheless, ARTICLE 19 is disappointed that references to several of the most egregious
criminal restrictions on freedom of expression in the Penal Code are retained in the Act. Whilenoting that Article 5 of the Basic Law for the Federal Republic of Germany gives no protection tocriminal content,46

The provisions of concern include:

45

Criminal Code, 13 November 1998, Federal Law Gazette [Bundesgesetzblatt] I p. 3322, last amended by Article
1 of the Law of 24 September 2013, Federal Law Gazette I p. 3671 and with the text of Article 6(18) of the Lawof 10 October 2013, Federal Law Gazette I p 3799. The listed provisions in the Act are: Section 86

organisprovid46

Cf.

ARTICLE 19 consi
actus reus of
an offence is expressive conduct characterised or motivated by hatred. Further explanation of this point is provided
op. cit., at pages 24 27.
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Germany: The Act to Improve Enforcement of the Law in Social Networks

Defamation of religions, religious and ideological associations in a manner that is capable ofdisturbing the public peace (Section 166 GCC): international human rights law protects
people, and not abstract concepts, such as religion or belief systems. It is not a legitimate
aim under Article 19(3) of the ICCPR to limit freedom of expression to protect religions or
belief from criticism, or to shield followers of a religion or belief from offence. The repeal of
blasphemy laws is supported by the HR Committee,47 as well as by the Rabat Plan of
Action, 48 numerous special procedures of the HRC, 49 the Venice Commission, 50 theParliamentary Assembly of the Council of Europe,51
Freedom of Religion or Belief.52
ARTICLE 19 notes that in 2011, HRC Resolution 16/18 moved past the divisive concept of
without reference to this concept, with limitations on expression restricted to the incitementof imminent violence on the basis of religion or belief.53 Various countries in Europe havedecided to repeal their blasphemy laws.54 We do not consider that the limitation of Section
compliance with international human rights law. This qualification merely privileges persons
likely to respond to legitimate expression with violence or other unlawful conduct, at theexpense of the person engaged in legitimate expression (the soThere is no requirement for intent on the part of the speaker to advocate hatred against
persons on the basis of a protected characteristic in a way that constitutes incitement todiscrimination, hostility or violence, as per Article 20(2) of the ICCPR.55



Criminal defamation and insult, including insult against a group (Sections 185 187 andSection 130(1)(2) of the GCC): ARTICLE 19 has long advocated for the repeal of criminal
defamation laws and their replacement with appropriate civil defamation laws, as criminal
penalties are a disproportionate means for protecting the reputation rights of individuals
from injury.56 The HR Committee has also called for decriminalisation, and affirmed thatimprisonment is never an appropriate penalty for defamation.57 ARTICLE 19 considers thatthe right to freedom of expression cannot be limited solely on the basis of protecting an
legitimate aim.58 Furthermore, insult or defamation laws that allow individuals to sue on
behalf of a group, which does not itself have legal status, as with Section 130(1)(2), are notjustifiable.59

47

HR Committee, General Comment No. 34, op. cit., para. 48.

48

Ibid.

49

Report of the Special Rapporteur on freedom of religion or belief, A/HRC/34/50, 17 January 2017; Report of theSpecial Rapporteur on freedom of expression, A/71/33, 6 September 2016; Report of the Special Rapporteur on
minority issues, A/HRC/28/64, 2 January 2015; UN Working Group on Arbitrary Detention, Opinion No. 35/2008(Egypt), 6 December 2008, para. 38. The UN Human Rights Council special procedures have also been supported
by regional mandates, see: Joint Declaration on defamation of religions, and anti-terrorism, and anti-extremism
legislation, 9 December 2008.
50
The European Commission for Democracy through Law (the Venice Commission), The relationship between
freedom of expression and freedom of religion: the issue of regulation and prosecution of blasphemy, religious
insult and incitement to religious hatred, October 2008, para. 89.
51
Council of Europe Recommendation 1805 (2007), Blasphemy, religious insults, and hate speech against
persons on grounds of their religion, 29 June 2007.
52
EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief, 2013.
53
ARTICLE 19, New Guide on Implementing UN HRC Resolution 16-18, 27 February 2017.
54
For example, within the European context, the United Kingdom, Iceland, Norway, and Malta, have all recently
repealed criminal prohibitions on blasphemy.
55
For further analysis of these types of limitations, see Hate Speech Explained: A Tool Kit, op. cit., p. 29 31.
56
ARTICLE 19, Defining Defamation, op.cit., Principle 4.
57
HR Committee, General Comment No. 34, op. cit., para. 47.
58
Defining Defamation, op. cit., Principle 2
59
Ibid., Principle 2(b)(v).
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Germany: The Act to Improve Enforcement of the Law in Social Networks



Publicly approving of, denying or downplaying international crimes committed under the ruleof National Socialism, or approving of, glorifying or justifying National Socialist rule ofarbitrary force (Sections 130(3) and (4) GCC): international human rights law does not
permit limitations on freedom of expression to protect truth claims around historical eventsor to limit the expression of opinions on those events, even if they are deeply offensive.60 As
the Special Rapporteur on freedom of expression
by demanding that writers,
journalists and citizens give only a version of events that is approved by the Government,
61
For
the same reasons as in relation to Section 166 GCC, the qualification that such expression
does not bring these provisions into conformity with international human rights law.62 The
Grand Chamber of the European Court of Human Rights has found, in relation to historicalmemory laws, that criminal convictions for expression where there was no intent to inciteviolence or hatred, in a context where violence or hatred as a consequence of the expression
was also unlikely, meant that the limitation was not necessary and therefore violated Article
10 of the ECHR.63 In the same decision, however, the Grand Chamber affirmed that theantidemocratic ideology and antin,with the historical context of a State seemingly being determinative. 64 Nevertheless,
ARTICLE 19 advocates, in line with General Comment No. 34, that absent an express
requirement showing that denialism or glorification also constitutes incitement as per Article
20(2) of the ICCPR, such provisions do not meet the necessity requirements of Article 19(3)of the ICCPR.

Other content restrictions incompatible with international human rights law include
prohibitions on: disseminating propaganda or using symbols of unconstitutional

pursue a legitimate national security interest, and/or do not require a sufficiently direct andimmediate connection between the expression and the likelihood or occurrence ofviolence.65
ARTICLE 19 finds that requiring private enterprises to censor content that violates theseprovisions of the GCC may bring those private enterprises into direct contravention of their
responsibility under international human rights law to respect the right to freedom of expression.66
Other provisions are too broad, and do not fully comply with the requirements of the ICCPR andthe ECHR:
 Disturbing the public peace:
incites hatred against a national, racial, religious
group or a group defined by their ethnic origins, against segments of the population orindividuals because of their belonging to one of the aforementioned groups or segments ofcriminalises conduct that falls short of advocacy of hatred constituting incitement todiscrimination, hostility or violence, the criminal sanctions foreseen do not meet therequirements of necessity and proportionality.


Violations of intimate privacy: While omitted from the English language translation, theGazetted version of the Act (in German) includes in its listing Section 201a GCC, which

60

General Comment No. 34, op. cit., para. 49.
Report of the Special Rapporteur on freedom of expression, 7 September 2012, A/67/357, para. 55.
62
For further analysis of these types of limitations, see Hate Speech Explained: A Tool Kit, op. cit., p. 32
63
Grand Chamber of the European Court, Perinçek v. Switzerland, No. 27510/08, 15 October 2015.
64
Ibid., para. 243.
65
Johannesburg Principles, op.cit.; Principles 2 and 6.
66
The Ruggie Principles, op. cit.
61

34.

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considers that privacy offences may constitute legitimate restrictions on the right to freedomof expression if they protect individuals from substantial harm, such as the non-consensual
disclosure or distribution of private sexual content, provided that they are narrowly drawn,
contain sufficient defences for the protection of freedom of expression, and do not impose
disproportionate sanctions.67 However, there are circumstances, particularly in regards topublic figures, where the disclosure and distribution of intimate private photographs may bejustified by an overriding public interest. 68 Since the German Criminal Code does notprovide defences in that regard, delegating enforcement of this provision raises potential
freedom of expression concerns for cases where disclosure or distribution is justified in thecircumstances.
ARTICLE 19 also recalls that an explanatory memorandum accompanying an earlier draft versionof the Act explained that private enterprises determining the legality of content need only consider
the objective elements (actus reus) of an offence, and not the mental elements (mens rea), or
defences/justifications, even though all three would otherwise be determinative of criminal
responsibility. It is not clear from the Act whether this is still how private enterprises should
approach
al element of an offence is not present, or acomplete defence applies, that content would in fact be lawful. This ambiguity is likely to further
contribute to an over-cautious approach to content moderation by Social Networks.

Handling complaints about unlawful content
Section 3 of the Act prescribes how Social Networks (as defined in Section 1(1)) will handle
unlawfulthan 2 million users are required to comply with this provision.
Section 3 was substantially revised between the draft Bill stage and the adoption of the finalised
Act. Those changes include limited exemptions to the 7-day limit for Social Networks to remove
any required retention of user-data should respect dataprotection obligations; and, significantly, the creation of powers for the Federal Office of Justice(Bundesamt für Justiz) as an administrative bodythe review of content moderation decisions. The Federal Office of Justice is the central service
authority of the Federal German judiciary.69
While the following analysis of Section 3 focuses on process, this does not change the fact thatmuch of the content likely to be at issue under the Act cannot legitimately be restricted by thegovernment under international human rights law, even if this is deputised to private enterprises.

Processes for complaining about unlawful content
Section 3(1) of the Act
procedure for handling complaints about unlawful
sub-sections;available

an effective and transparent
in accordance with the subsequent
directly accessible and permanently

Encouraging the institution of accessible, transparent and usable complaints procedures
integrated to websites regarding unlawful content is a positive aim. These are spelled out moreclearly in Section 3(2); they include: The requirement that Social Networks acknowledge without undue delay receipt of acomplaint (Section 3(2)(1));

67

ARTICLE 19, Global Principles on Freedom of Expression and Privacy, March 2017; at Principle 3(b) .
Ibid. at Principles 12 and 13.
69
Federal Office of Justice is also port of call for international legal transactions and performs other functions.
68

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The requirement that Social Networks inform both the complainant and the author of thecontent in issue of any decision reached, as well as the reasons for the decision made(Section 3(2)(5));

That training and counselling be provided to content moderators in German (Section 3(4)).

Online intermediaries, in particular Social Networks, too infrequently provide this level of
information and transparency to complainants or to users whose content is subject to removal.
However, it is potentially disproportionate to compel these practices through the threat of severe
administrative penalties (Section 4). It is also concerning that the Act does not require Social
Networks to provide to users the means to challenge content-removal decisions, for example on

ARTICLE 19 further notes that the vast majority of intermediaries that moderate content shared byusers on their platforms make removal decisions on the basis of their terms of service, and not thenational laws where a complainant is situated (unless a request is received by a national law
enforcement authority requesting removal on this basis). It is unclear whether to comply with
Section 3(1), a Social Network would need to amend their reporting mechanisms and supplement
expressly tied to the specified provisions of the GCC. Several of these provisions, for example onofcomplex matters of German Criminal law within amended or supplementary terms of service isunclear.
Moreover, the process prescribed in the Act does not acknowledge more innovative and alternative
approaches to dealing with harmful content online that some Social Networks have advanced inrecent years. These include, for example, functions that allow a complainant to initiate aconversation with the author on why content is harmful and should be removed voluntarily, or theavailability of end-user controls for a user to block or silence content they find upsetting (butshould not necessarily be blocked or removed). Prescribing processes that rely solely on take-downor blocking under threat of administrative sanctions, provides little flexibility for other forms ofdispute resolution, and may even inhibit innovation in this space. These alternatives should be
encouraged: they can be less intrusive to fundamental rights; they may provide users withprotective mechanisms more tailored to their needs; and, they may provide a forum for more
effectively challenging (and changing) unlawful or harmful online behaviour.
The impact of Section 1(3) of the Act is therefore still likely to discourage intermediaries fromallowing user engagement on their platforms, and therefore chill freedom of expression, rather
than incentivise more user-friendly complaint procedures.

Removal and blocking
The Act requires Social Networks to adopt a particular approach to removal and blocking of
unlawful content in response to user-generated complaints or complaints sent by other bodies;
there is slightly more detail built into these requirements than in previous draft versions of thelaw, as well as some notable differences.
Section 3(2)(2) and Section 3(2)(3) of the Act requirthat is manifestly unlawfulof receipt (or a longer term to be determined between
a Social Network and relevant law enforc
receipt (descversion).
Two requirements included in earlier draft versions of the Act have been removed, including that
the Social Network should(previously Section
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3(2)(6)), and the obligation to institute measures to prevent future uploads of the same content(previously Section 3(2)(7)). This is welcome, as these provisions would likely have been
-Commerce Directive, Articles 14(1) and 5.
At the same time, the Act introduces two new exemptions to the application of the 7-day time
, which must always beremoved within 24 hours):
 Section 3(2)(3)(a) allows for a longer period (of unspecified duration) where thethe author of
the content) to respond to the complaint before the decision is made.


Section 3(2)(3)(b) allows the decision regarding unlawfulness to be referred to a selfregulatory institution that is recognised by the Federal Office for Justice in accordance withthe requirements set out in the Act (see below). To receive and retain its recognition, anythat referrals will be considered within
7 days, and the Social Network is obliged to adhere to their decision to benefit from theexemption.

Sections 4(1)(2) and 4(1)(3) of the Act make it an administrative offence for a Social Network torequirements of Section 3(1). Section 4(2) retains administrative penalties of up to 5 million
Euros for such violations. However, the potential application of the Act on Regulatory Offences
enables the fine to be multiplied ten-fold to 500 million Euros. Section 3(5) provides that a Social
so by the Federal Office for Justice.
To impose liability for failures to remove or block content, the Federal Office of Justice must firstseek a decision of the Administrative Court which deals with objections to regulatory fines (Section
4(5)). This process requires the administrative body to furnish the Administrative Court with astatement by the Social Network, but specifically excludes the possibility for any oral hearing, andavailability of appeal). The procedure does not allow for the inclusion as parties of either thelat issue or the complainant.
Additionally, Section 5 requires Social Networks to name a person authorised to receive service inrelation to procedures under section 4 or in judicial proceedings, and this person is obliged torespond to requests from law enforcement within 48 hours of receipt.
ARTICLE 19 finds that the requirement in the Act that Social Networks
international freedom of expression standards. This type of duty has been criticised by the UN andregional freedom of expression mandates as an attempt to privatise controls over public
communications.70
The following criticisms exemplify why this approach to intermediary liability should be avoided,
and why the Act is so fundamentally flawed from a freedom of expression perspective: The threshold for liability is unclear: it is difficult to determine how a Social Network will beassesscoprovided a
procedure in compliance with therequirements. If a small number of failures toremove unlawful content while still having the correct procedures in place does not attract
liability, then the proportion of failures in relation to well-founded complaints that must be
shown is not clear. While statistics would be available through quarterly reports furnished bySocial Networks under Section 2, these would not illuminate the proportion of complaints
70

op. cit.
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that concerned content actually found by an independent court to be illegal, but insteadwould only show the determinations made by the Social Network through their own
assessment. There is consequently considerable legal uncertainty about the point at which
liability is engaged.


Private enterprises should not be arbiters of legality in the exercise of fundamental rights:
Section 3(2)(2) and Section 3(2)(3) require private actors to make their own assessment of
the legality of content following notification from parti
make authoritative determinations on the legality of content. International standards requirethat liability only be imposed where an intermediary refused to comply with an order from an
independent, impartial, authoritative oversight body, such as a court. The threat of sanctions
incentivises intermediaries to be over-cautious and err towards removal or blocking (orremove functions for third party comments entirely) to avoid liability. While the addition ofSections 3(2)(3)(a) and (b) seek to provide further safeguards in this respect, they also
reveal how complex and unrealistic the requests on Social Networks to determine legality
cient.


private enterprise to accurately predict: the Act provides no guidance to Social Networks on
manifestly unlawful content
unlawful
expression when making these determinations (even though law enforcement authorities are
required to consider this when acting to restrict freedom of expression pursuant to the GCC).
Private companies are clearly not well placed to be making complex legal and factual
determinations on the interpretation of the German Criminal Code, which require taking into
account the content of expression, the mental state of the person publishing the content,
the context in which that information is shared, and considerations of the impact of thatpublic order. The addition of Section 3(2)(3)(a) acknowledges that complexity, but does notprovide a solution to the core problem. The majority of these factors cannot be determinedby a facial assessment of the content at issue (with the exception of child abuse images),requiring further investigatory work that are beyond the capabilities or competence of any
intermediary to do accurately, notwithstanding the addition of Section 3(2)(3)(a) and therequirement for Social Networks to engage in investigatory work themselves.
Process for administrative review lacks adequate safeguards: while the enforcement of fines
for failure to remove or block content requires judicial authorisation under Section 4(4), thedue process guarantees therein are inadequate, and provide no protection for good faithdecisions to not remove or block content (including where the intermediary considers their
responsibility to respect freedom of expression requires such constraint). Similarly, there is
no exemption from liability where a Social Network moves promptly to remove content
following the decision of the Administrative Court. These factors are likely to increase thetendency among Social Networks to be over-cautious when making content-removal
decisions.



No mechanisms for users whose content is removed to assert their rights: Section 3(2) andSection 4 provide no recourse for users whose lawful content is removed pursuant to the Act.
Administrative authorities are only required to intervene in relation to failures to remove or
block content, and no process is foreseen for users to complain about or seek reviews ofillegitimate removal or blocking decisions taken on the basis of the Act.



Proportionality of sanctions: the sanctions foreseen under Section 4(2) of up to 5 million
Euros, potentially multiplying by ten to 500 million Euros through the application of the Act
on Regulatory Offences, are grossly disproportionate. The independence of the
Administrative Body decision-making processes from political influence is a particular

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concern, and is not safeguarded through the limited judicial supervision provided by the
Administrative Court in Section 4(5).
Arbitrary audits:y an (unspecified) agency tasked with this
responsibility by the Federal Office for Justice is unclear. On what basis monitoring can beordered (e.g. in response to an alleged breach of the Act, rather than as a fishing expedition),
and what the scope and duration of that audit might be, is unclear.

for

-

s

-regulatory(Section 3(5)(7)). While the Act does not require Social Networks to create, join or
Networks to so do, and to seek recognition for these institutions from the Federal Office for Justice.
On terminology, there are notable differences between the English translation of the Act and the71-regulation.
The official Act is therefore moretransparent in revealing the framework for public supervision of content moderation that the Actadvances.
advanced in the Act departs quite significantly from what ARTICLE 19 considers to be effective
12).
Section 3(5)(6) of the Act sets out five criteria for the Federal Office for Justice to consider when
conferring recognition for the purposes of Act. These include: (i) the independence and expertiseof its analysts; (ii) that it can guarantee a decision on referred questions of law within seven days;(iii) that it provides rules and procedures for the scope and structure of analyses, for submissions
requirements, and the possibility of review
to the admission of new providers.
but also to wholly or partially withdraw that recognition where the listed criteria are no longer met(Section 3(5)(8)), or to temporarily bar-regulatory

Section 3(2)(3)(b) of the Act reveals the main incentive for Social Networks to establish, join andto these institutions
decisions regarding the takeand thereby extend the required deadline for removals by 7 days. The Social Networks are thenselfreceive official recognition, are less clear. They are(Section 3(6)(3)), but it is not apparent which decisions this refers to, and on
the basis of a request from whom (e.g. from the administrative authority, the Social Network itself,
or the original complainant or author). They are also required to have in place a3(6)(4)), but it is not apparent
deal with, i.e. who may submit complaints, and in relation to what conduct or decision by whom.
ARTICLE 19 considers that the framework for

71-

See: Section 2(7); Section 3(2)(3)(b); Section 3(5)(6); Section 3(7); Section 3(9).
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There is nothing in principle that is concerning about Social Networks establishing external andindependent self-regulatory mechanisms, to pool resources and expertise in how they moderate
their platforms in accordance with their own terms of service or in response to lawful requests
from States. Assuming that any self-regulatory mechanism created by Social Networks would (a)be open to participation from civil society, (b) be transparent, and (c) be accountable to the public,
this may provide opportunities for achieving greater fairness and transparency in Social Networks
operations, while also building public confidence in them as platforms for sharing and receiving
information. A truly self-regulatory approach may also allow for a greater emphasis on how Social
Networks fulfil their responsibilities to respect human rights, including both the rights to equality
and freedom of expression, and therefore include civil society and academic experts on humanrights and freedom of expression. This may lead to the development of alternatives to content
takedown that are more effective and satisfactory for complainants and authors of unlawfulcontent.
However, ARTICLE 19 believes that the approach in the Act is unlikely to work in this direction.
response to criticism of earlier drafts, but does not remedy the weaknesses identified above.
There are several general issues with the framework as adopted:
 It does not provide an alternative model for resolving disputes, but instead merely delays bya matter of days, for a narrow category ofpunitive administrative law process. Though this provides time for a secondary examinationof legality, content is still removed without a determination of legality by a judicial body,and the deadlines provided are clearly unreasonable.


The problems with the system for removal and blocking listed in the previous subsection
therefore all still apply, with the regulatory system still grounded in the German Criminal
Code (rather than an ethical code defined and agreed to by the self-regulatory body), andthe harsh sanctions regime still creating an incentive structure that favours content removals
without safeguards for the protection of freedom of expression.

s vested in a body that is notindependent from political influence but potentially beholden to it. The power forrecognition to be revoked or to suspend the privileges Social Networks receive by using thismechanism, in particular, further incentivises an
err on the side of censorship rather than protect freedom of expression. Any recognition
body must be wholly independent from the State, and should include representation from all
relevant stakeholders from within industry and civil society.

The powers of recognition as set out in the Act would have to be fundamentally altered in order tocomply with international human rights law. In particular, the framework would need to specify:
 Detailed and objective crite
regulatory mechanism should be qualified with, in order to prevent the abuse of ambiguous
criteria;

That analysts be appointed through a fully consultative and inclusive process, which isdemocratic and transparent;That the self-regulatory mechanism
industry and civil society;

That the self-regulatory mechanism be tasked with identifying and setting out its own
ethical standards, and seek through its procedures for its industry members to adhere withthose ethical standards, rather than for a self-regulatory mechanism seek to enforce
compliance with the law;membership be comprised of individuals from within

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

That any rules and procedures that analysts or self-regulatory body members are required tofollow must comply with basic principles of due process;

That adequate time be given to consider fully any individual complaint, which should be
more than seven days;Powers for the self-regulatory mechanism to require its members abide with their decisions,
including non-pecuniary remedies;

That the self-regulatory body is adequately and sustainably funded, to ensure that they areable to achieve their mission;That the power of recognition be given to a body insulated from political and otherinterferences, rather than entrusted to an administrative body.

Given that the framework proposed in the Act is so fundamentally at odds with these requirements
and safeguards, ARTICLE 19 considers that its openness to unfair decisions and politicalinfluence, while failing to provide true accountability to the public, makes it incompatible withinternational human rights law.

Reporting requirements
Section 2(1) of the Act requires Social Networks that receive more than 100 complaints per
calendto provide quarterly reports on their handling ofcomplaints.
Section 2(2) details the information these reports must contain, including general information
about the processes in place and specific resources allocated to content moderation, numbers ofcomplaints received (disaggregated on basis of complaint, and whether received from a publicauthority or private party), and on the outcome of decisions (disaggregated in the same way, withthe time taken to delete or block), whether both complainant and author were informed of the.
Failure to meet reporting requirements is an administrative offence under Section 4 of the Act,
punishable with fines up to 500,000 Euros. Again, the Act on Regulatory Offences allows this tobe multiplied ten-fold to 50 million Euros.
ARTICLE 19 considers that intermediaries should disclose these types of information, in particular
in relation to removal or blocking requests made by States, and opposes any law that seeks to limit
the disclosure of such information. Compelling disclosure is in the public interest, and into content removal and blocking practices broadly (for example,
in relation to content removed for violating terms and conditions which is otherwise lawful in the
country concerned).

Individual responsibility for offences committed online
ARTICLE 19 is concerned that the Act focuses almost exclusively on the administrative liability ofSocial Networks seemingly as an alternative to seeking accountability of the authors offurther unlawful content, and will not impact the underlying causes of criminal behaviour, inparticular that which is motivated by hatred or bias against particular groups. Given that there arealternative and more effective means of achieving this policy objective, the necessity of the Act,with its dominant focus on coercive administrative sanctions is questionable.

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Amendments to the Telemedia Act
Article 2 of the Act amends the Telemedia Act (Telemediengesetz) (which transposes the ECommerce Directive into German law) to expand the list of grounds on which law enforcement canrequest users inventory data from. This new ground includes inventory data
rights by unlawful content as defined in the Network Enforcement Act. Addressing previous
criticism, any such disclosure must be on the basis of a court order requested by the injured party
through a regional court; it allows for the Social Network to be involved as an interested party inthe proceedings.

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Conclusion
ARTICLE 19 finds the Act, taken overall, to be dangerous to the protection of freedom of
expression in Germany, and we are particularly concerned that countries with much weakerinstitutional and legal safeguards for the protection of human rights are looking at this Act as amodel for increasing intermediary liability.
For these reasons, we recommend that the German Parliament immediately consider the repeal of
the Act, while simultaneously taking measures to repeal provisions of the German Criminal Codethat do not comply with international human rights law on freedom of expression.

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Germany: The Act to Improve Enforcement of the Law in Social Networks

About ARTICLE 19
ARTICLE 19 advocates for the development of progressive standards on freedom of expression andfreedom of information at the international and regional levels, and their implementation indomestic legal systems. The Law Programme has produced a number of standard-setting
publications which outline international and comparative law and best practice in areas such asdefamation law, freedom of expression and equality, access to information and broadcast
regulation.

publishes a number of legal analyses each year, comments on legislative proposals as well as
existing laws that affect the right to freedom of expression. This analytical work, carried out since1998 as a means of supporting positive law reform efforts worldwide, frequently leads tosubstantial improvements in proposed or existing domestic legislation. All of our analyses areavailable at http://www.article19.org/resources.php/legal.
If you would like to discuss this analysis further, or if you have a matter you would like to bring to
the attention of the ARTICLE 19 Law Programme, you can contact us by e-mail at
legal@article19.org.

Katie Morris, Head of Europe and Central Asia at ARTICLE 19, at katie@article19.org.

ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500
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