The German law on hate speech (Network Enforcement Act – Netzwerkdurchsetzungsgesetz) which came into effect on October 1, 2017 is continuously subject to criticism. Its legal and political implications in regard of the current global debate on the dealing with different opinions, the power and influence of social media on information and disinformation and its place in the context of an increasing fragmentation of the internet are widely discussed throughout media (i.e. see our posts here and here).

Since January 1, 2018, social media providers are now obliged to maintain a procedure for complaints. This procedure forms a core element of the law, as the obligation on the social media provider to delete unlawful content and the time period for deletion are triggered by the receipt of a complaint.

The new law requires the establishment of an “effective and transparent procedure for handling complaints about unlawful content” whereby it defines unlawful content as content that infringes one or more of more than twenty different potential criminal offences of the German Criminal Code (Strafgesetzbuch). In addition the procedures shall be “easily recognizable, directly accessible and permanently available.”

The complaint procedures recently launched by the largest social media platforms generally request that the user provide not only an explanation why some content might be unlawful but also a categorization under particular legal provisions. The referenced provisions of the German Criminal Code build a highly sophisticated structure of partially interacting provisions, which raises a question of whether the average user will be able to complete the respective forms correctly.

There is a concern that the complexity of the tools may discourage users from submitting complaints. Consequently, the net effect may be that procedure might fail to meet the requirements and objectives of the law to provide an operable complaints procedure.

Generally, the German law on hate speech intends to create responsibility and accountability to social media providers for content provided and shared on their platforms. However, the first few days since the rollout of the complaints procedures seem to be highlighting the essential construction faults of the new law.

The decision whether content is unlawful is difficult and must take into consideration the overall circumstances, which might not be evident to the responsible person. Thereby, the threat of punishment with considerable fines in case of non-removal of unlawful content does – as predicted – has already led to a situation in which social media providers have deleted content in a precautionary and over-obligatory manner (so-called “overblocking”).

The law’s assignment of the legal assessment on the question of lawfulness of content to social media providers constitutes a factual shift away from the competent courts, which seem to be in a better position to make the legal determination of the admissibility of statements, comments and other content. Even though it is obvious that state courts do not have the staffing nor the velocity to review the volume of social media, readers should be aware that such a shift consequently includes a shift of power over the public debate.

At the moment, the actual effect of the new law remains unclear in both directions: the containment of hate speech as well as the collateral of unintended censorship. Currently, the complaints procedures as well as the respective decisions on the removal of content leave room for improvement. Therefore, the development of the social media provider’s fulfillment of the law’s imposed obligations will be crucial for the overall fate of the law on hate speech itself, as it is currently under heavy attack from public and expert opinion.