The German Ministry of Justice has submitted a new draft of the Hate-Speech law (German PDF) to the EU Commission before the expiry of the deadline for the hearing of private interest groups. The new draft (comparison in German) now contains many more criminal offences, as well as a provision that private persons may have access to information about the identity of other private persons. Thus, the law is already extended before it has even become law.
Only the upload filters for the prevention of the upload of files reported in violation of copy-write law are now removed. However, the draft also contains the possibility to establish content filters to delete already existing content.
Significant restrictions on freedom of expression and communication
We have already criticized the older draft as problematic for freedom of expression (German) and, among other things, the vague definition of social networks. Other voices have also suggested that the establishment of corporate intermediaries within the social networks to expedite the summons of courts and law enforcement be legally anchored and that the prosecution of authors of criminal hate speech (German) be emphasized.
The Digitale Gesellschaft criticizes the fact that the new draft makes social networks actually a content police of the Internet (German) and that it introduces the privatized enforcement of laws. With the expansion of the criminal catalogue and the inclusion of the possibility to request information for private individuals, these risks would be further intensified. The right for private persons to demand the personal data of other private persons for cases like those of defamation in a comment forum as introduced in the new draft involves the risk of enforcing the use of real names on the internet through a legal back door.
For an inquiry into the identity of the user of a service you always require two legal grants (double door model) – one granting the right to information and one for the authority to grant access to the information. § 14 Telemediengesetz (TMG) regulates the access, not the right to information. The German Federal Court is deducing the right to information in case of personal rights violations from the principle of Good Faith, which is not regulated by §14 TMG. If the new draft is introduced as law in § 14 TMG, the path for information inquiries is free for everybody.
If private persons can now under the pretext of violation of absolute personal rights and without the involvement of judges, make inquiries about the identity of users on the internet, the intimidation effect will lead to a considerable restriction of freedom of expression and communication and threatens whistle-blowers. In addition, such a power of information provides abuse potential for other forms of hate criminality. Users could, for example, require access to information about addresses of other persons in „real life“. The problem is that no court or prosecutor’s office checks whether such an infringement on personal rights has been submitted. The checking must be done by the online service itself, just as in the case of deleting comments.
Suddenly also against pornography
Also new in the draft is the procedure against the spread of pornography. In the old draft, it was still proclaimed, that pornography crimes were „already effectively pursued“. The law now seeks to promote the extinction of ordinary nipples & Co. by extending it by § 184 d. This is not just about spreading child pornography, which is already effectively prevented and tracked by all major networks. The effects on group chats, for example WhatsApp, which might also be affected by the law depending on the size, will be interesting. Here, part-public communication on legal content such as pornography would suddenly become the focus of deletions.
A number of other criminal offences have now been added to the draft, which German Justice Minister Heiko Maas recently presented to the press:
- § 89a Preparation of a Serious state-endangering crime
- § 90b Anti-constitutional denigration of constitutional bodies
- § 91 Instructions for the commission of a serious state-threatening act of violence
- § 100a Forgery for national treason
- § 129a Formation of terrorist groups
- § 129b Criminal and terrorist associations abroad
- § 131 Violence presentation
- § 184b Dissemination, acquisition and possession of child pornography
- § 184d Access to pornographic content by radio or telemedia; Retrieval of child and adolescent pornography by means of telemedia
It is not exactly clear who is affected by the law
The bill also contains the already-criticized definition of social networks, which in case of doubt could also include e-mail platforms and other services. In the new draft, the user limit of two million now means that it is not „registered users“, but only users. In this case it is unclear whether there are not many more platforms which would fall under the new regulation if unregistered users who simply visit a site are taken as basis for the definition. The draft leaves room for interpretation, although a spokesman for the Ministry of Justice mentioned „registered users“ only, when asked by netzpolitik.org. By means of such vague definitions, the law, in addition to the harmful implications for freedom of expression, could create great legal uncertainty among companies.
It is also unusual in the legislative process that the opinions of private organizations can not be incorporated into the law as usual. This is because the Ministry of Justice hastily notified the EU Commission of the draft without waiting for the passing of the deadline for submissions. EU Member States must notify the Commission in case of new legislation on products and services concerning information companies before passing the bills. This is intended to ensure that laws are compatible with the European internal market and EU law.
This hasty process is criticised by Digitale Gesellschaft: „This approach creates the impression that any objections on the part of private organizations will be ignored in the house of Maas and the bill in the now notified form is already a settled matter.“