By William James Hargreaves

The Network Enforcement Act

The Network Enforcement Act (NetzDG), a law passed on the 30th of June by the German Government operates to fine social media companies up to 50 million Euros – approximately 360 crore rupees – if they persistently fail to remove hate speech from their platform within 24 hours of the content being posted. Companies will have up to one week where the illegality of the content is debatable.

NetzDG is intended to hold social media companies financially liable for the opinions posited using their platform. The Act will effectively subject social media platforms to the stricter content standards demanded of traditional media broadcasters.

Why was the act introduced?

Germany is one the world’s strictest regulators of hate speech. The State’s Criminal Code covers issues of defamation, public threats of violence and incitement to illegal conduct, and provides for incarceration for Holocaust denial or inciting hatred against minorities. Germany is a country sensitive to the persuasive power of oratory in radicalizing opinion. The parameters of these sensitivities are being tested as the influx of more than one million asylum seekers and migrants has catalyzed a notably belligerent public discourse.

In response to the changing discourse, Facebook and a number of other social media platforms consented in December 2015 to the terms of a code of conduct drafted by the Merkel Government. The code of conduct was intended to ensure that platforms adhered to Germany’s domestic law when regulating user content. However, a study monitoring Facebook’s compliance found the company deleted or blocked only 39 percent of reported content, a rate that put Facebook in breach of the agreement.

NetzDG turns the voluntary agreement into a binding legal obligation, making Facebook liable for any future failure to adhere to it’s terms.

In a statement made following the law’s enactment, German Justice Minister Heiko Maas declared ‘With this law, we put an end to the verbal law of the jungle on the Internet and protect the freedom of expression for all… This is not a limitation, but a prerequisite for freedom of expression’. The premise of the position of Minister Maas, and the starting point for the principles that validate the illegality of hate speech, is that verbal radicalization is often time the precursor to physical violence.

As the world’s predominant social media platform, Facebook has curated unprecedented, and in some respects, unconditioned access to people and their opinions. With consideration for the extent of Facebook’s access, this post will focus on the possible effects of the NetzDG on Facebook and it’s users.

Facebook’s predicament

How Facebook intends to observe the NetzDG is unclear. The social media platform, whose users now constitute one-quarter of the world’s population, has previously been unwilling to disclose the details of their internal censorship processes. However given the potential financial exposure, and the sustained increase in user content, Facebook must, to some extent, increase their capacity to evaluate and regulate reported content. In response, Facebook announced in May that it would nearly double the number of employees tasked with removing content that violated their guidelines. Whether this increase in capacity will be sufficient will be determined in time.

However, and regardless of the move’s effectiveness, Facebook’s near doubling of capacity implies that human interpretation is the final authority, and that implication raises a number of questions: To what extent can manual censorship keep up with the consistent increase in content? Can the same processes maintain efficacy in a climate where hate speech is increasingly prevalent in public discourse? If automated censorship is necessary, who decides the algorithm’s parameters and how sensitive might those parameters be to the nuances of expression and interpretation? In passing the NetzDG, the German Government has relinquished the State’s authority to fully decide the answer to these questions. The jurisdiction of the State in matters of communication regulation has, to a certain extent, been privatised.

Recently, an investigative journalism platform called ProPublica claimed possession of documents purported to be internal censorship guidelines used at Facebook. The unverified guidelines instructed employees to remove the phrase ‘migrants are filth’ but permit ‘migrants are filthy’. Whether the documents are legitimate is to some extent irrelevant: the documents provide a useful example of the specificity required where the aim is to guide one person’s interpretation of language toward a specific end – in this instance toward a correct judgment of legality or illegality.

Regardless of the degree of specificity, it is impossible for any formulation of guidelines to cover every possible manifestation of hate speech. Thereby interpreting reported content will necessarily require some degree of discretion. This necessity begs the question: to what extent will affording private entities discretionary powers of censorship impede freedoms of communication? Particularly where the discretion afforded is conditioned by financial risk and a determination is required within a 24-hour period.

Statements made by Facebook prior to the legislation’s enactment expressed concern for the effect the Act will have on the already complex issue of content moderation. ‘The draft law provides an incentive to delete content that is not clearly illegal when social networks face such a disproportionate threat of fine’ a statement noted. ‘(The Act) would have the effect of transferring responsibility for complex legal decisions from public authorities to private companies’. Facebook’s reservation is telling: the company’s reluctance to adopt the role of moderator to the extent required alludes to the potential consequences of the liability imposed by the Act. 

The problem with imposing this form of liability

 Any decision made by a social media platform to censor user content will be supported by the anti-discrimination principles prescribed by the NetzDG. However, where the motivation behind discretionary decision-making shifts away from social utility towards financial management the guiding considerations become efficiency and risk minimisation. Efficiency and risk minimisation in this instance requires Facebook to either (i) increase capacity, which in turn results in an increased financial burden, or (ii) adopt guidelines that minimise exposure.

Seemingly the approach adopted by Facebook is to increase capacity. However, Facebook’s concerns that the Act creates financial incentives to adopt guidelines that minimise exposure are significant. Such concerns demonstrate an understanding that requiring profit motivated companies to do the work of the State within a 24-hour time frame will necessarily require a different set of parameters than those imposed on the regulation of oral hate speech. If Facebook, in drafting and applying those parameters, decides to err on the side of caution and, in some instances, censor otherwise legal content, that decision will have directly infringed the freedom of communication enjoyed by German citizens.

A democracy must be able to accommodate contrasting opinions if it purports to respect rights of communication and expression. Conversely, limitations on rights enjoyed may be justified if they benefit the majority. The NetzDG is Germany’s recognition that the nature of online communication – the speed at which ideas promulgate and proliferate, and the disconnect between comment and consequence created by online anonymity – require the existing limitations on the freedom of communication be adapted. Whether instances of infringement, are warranted in the current climate is a difficult and complicated extension of the debate between the utility of regulating hate speech and the corresponding consequences for the freedoms of communication and expression. The decision to pass the NetzDG suggests the German Government considers the risk of infringement is acceptable when measured against the consequences of unfettered hate speech.

Public recognition that NetzDG poses a risk is important. It is best practice that within a democracy, any new limit to liberty, oral or otherwise, be questioned and a justification given. Here the justification seems well-founded. However the answers to the questions posed by sceptics may prove telling as Germany positions itself at the forefront of the debate over online censorship.

(William is a student at the University of Melbourne and is currently interning at CCG)