Bernhard Rohleder is the chief executive officer of Bitkom, Germany’s federal association for information technology, telecommunication and new media.
BERLIN — The German government’s Network Enforcement Act, which came into effect on Jan. 1, aims to improve law enforcement on the Internet and more effectively fight hate crime. The law targets criminal online offenses including defamation, incitement and sharing unconstitutional symbols, such as the swastika.
But within just a few days of coming into effect, the inevitable has become apparent: legitimate expressions of opinion are being deleted. The law is achieving the opposite of what it intended: it is actually hampering the fight against crime.
The operators of social networks that are subject to the law now have to delete “obviously illegal” content within 24 hours of being notified. Other illegal content must be reviewed by social networks within seven days of being reported and then deleted. If the complaint management requirements are not met, fines of up to 50 million euros may be imposed. This puts companies under tremendous time pressure to check reported content.
But the most problematic issue is that the new law tasks private companies, not judges, with the responsibility to decide whether questionable content is in fact unlawful. In other words, the state has privatized one of its key duties: enforcing the law.
Furthermore, for each complaint, deletion of online content is deletion of the evidence one would need in court (unless evidence has been secured in a way that will stand up in court). In terms of practical law enforcement, once something has been deleted, it cannot be used for forensic purposes.
Numerous legal experts believe that the new law violates the German constitution, particularly Article 5, which guarantees the freedom of expression and the right to information. Take this example: Last year, a satirical program referred to a member of the German parliament as a “Nazi slut.” Many people would have deemed this an “obviously illegal” insult that should be deleted. However, a court ruled otherwise.
Determining what’s legal speech and what’s not is a tricky task, especially when it comes to satire and art. But we must not hand over this critical task to private companies — which, by the way, are often foreign companies. Private enterprises — including America’s largest tech companies — must not be allowed to decide how our basic rights to freedom of speech and opinion ought to be interpreted.
What might a feasible alternative look like? Courts, public prosecutors and police departments need to be outfitted with much better resources — meaning more staff, more knowhow and more money. Just as they take action thousands of times every day against misdemeanors and criminal offenses, it’s up to them to enforce the law on the Internet. It is up to the courts to decide on right and wrong.
And simply deleting content is not enough. The only way evil can be rooted out is for perpetrators to realize that their actions on the Web have consequences.
Germany is setting a bad example to the European Union with the Network Enforcement Act. With its many and varied cultural regions, Europe must remain a model and pioneer of freedom of expression throughout the world. Those lacking an understanding of German law — French President Emmanuel Macron, for example — are pointing to Germany to legitimize their own plans against fake news. Moreover, decision-makers in Russia and China must be gleefully rubbing their hands in triumph as they can now refer to the German example when being criticized by Western governments for oppressing free speech.
Yes, pluralism is hard work, and it is cumbersome to read and deal with all the comments people make online. But we must not throw certain principles overboard because of this.