A UN human rights committee examining the status of civil and political rights in Germany took aim at the country’s Network Enforcement Act, or NetzDG, criticizing the hate speech law in a recent report for enlisting social media companies to carry out government censorship, with no judicial oversight of content removal.
The United National Human Rights Committee, which oversees the implementation of the United Nations International Covenant on Civil and Political Rights (ICCPR), expressed concerns, as we and others have, that the regulation forces tech companies to behave as the internet police with power to decide what is free speech and what is hate speech. NetzDG requires large platforms to remove content that appears “manifestly illegal” within 24 hours of having been alerted of it, which will likely lead to take downs of lawful speech as platforms err on the side of censorship to avoid penalties. The absence of court oversight of content removal was deemed especially alarming, as it limits “access to redress in cases where the nature of content is disputed.”
“The Committee is concerned that these provisions and their application could have a chilling effect on online expression,” according to a November 11 Human Rights Committee report on Germany. The report is the committee’s concluding observations of its independent assessment of Germany’s compliance with its human rights obligations under the ICCPR treaty.
It’s important that the UN body is raising alarms over NetzDG. We’ve seen other countries, including those under authoritarian rule, take inspiration from the regulation, including Turkey. A recent study reports that at least thirteen countries—including Venezuela, Australia, Russia, India, Kenya, the Philippines, and Malaysia—have proposed or enacted laws based on the regulatory structure of NetzDG since it entered into force, with the regulations in many cases taking a more privacy-invasive and censorial form.
To quote imprisoned Egyptian technologist Alaa Abd El Fattah, “a setback for human rights in a place where democracy has deep roots is certain to be used as an excuse for even worse violations in societies where rights are more fragile.”
The proliferation of copycat laws is disturbing not only because of what it means for freedom of expression around the world, but also because NetzDG isn’t even working to curb online abuse and hate speech in Germany. Harassment and abuse by far-right groups aimed at female candidates ahead of Germany’s election showed just how ineffective the regulation is at eliminating toxic content and misinformation. At the same time, the existence of the law and its many imitations provides less of an incentive for companies to work to protect lawful speech when faced with government demands.
And in general, holding companies liable for the user speech they host has the chilling effect on freedom of expression the UN body is concerned about. With the threat of penalties and shutdowns hanging over their heads, companies will be prone to over-remove content, sweeping up legitimate speech and silencing voices. Even if massive platforms like Facebook and YouTube can afford to pay any penalties assessed against them, many other companies cannot and the threat of costly liability will discourage new companies from entering the market. As a result, internet users have fewer choices and big tech platforms garner greater monopoly power.
The UN Committee recommended Germany take steps to prevent the chilling effects NetzDG is already having on online expression. Germany should ensure that any restrictions to online expression under NetzDG meet the requirements of Article 19 (3) of ICCPR. This means that restrictions under the law should be proportional and “necessary for respect of the right or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.” Moreover, the Committee recommended that Germany considers revisiting NetzDG “to provide for judicial oversight and access to redress in cases where the nature of online material is disputed.”
Germany should adopt these recommendations as a first step to protect freedom of expression within its borders. Germans deserve it. We’ll wait.
The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. We work to ensure that rights and freedoms are enhanced and protected as our use of technology grows. Visit https://www.eff.org
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