Social Media (F) Law: The German Precedent

Recently, the Network Enforcement Act, commonly known as NetzDG has taken full effect from January 2018 in Germany. The controversial law was passed by the parliament in June 2017. This piece of legislation has created ripples around the globe with a fair amount of supporters as well as adversaries. For a democracy like India, this law has raised concerns about what privacy actually entails and whether private organizations reserve the power to dictate our morals.

About the Law

The NetzDG requires that large social media platforms, such as Facebook, Instagram, Twitter, and YouTube, must promptly remove “illegal content,” as defined in 22 provisions of the criminal code of Germany, ranging widely from the insult to public office to actual threats of violence.  The impact of this enactment can be seen by the amount of fine imposed on these companies which is up to 50 million euros, forcing them to arbitrarily remove content to escape pecuniary liability.

Even before the law was enacted, Germany was extremely aggressive in expressing its distaste over such expression online. Chancellor Angela Merkel’s government has been worried about the explosion of racist abuse and anti-immigrant posts since the arrival, from 2015, of more than a million migrants, predominantly from war-torn Muslim countries. Nazi symbols and Holocaust denial are illegal in Germany, and the country has some of the Western world’s most stringent anti-hate speech laws.

Justice Minister Heiko Maas, who piloted the legislation, said its intention was to make the rules that apply in the real world, equally enforceable in the digital world.

“Freedom of opinion ends where criminal law begins… Calls to commit murder, threats, insults, incitement to hatred, or the Auschwitz lie aren’t expressions of freedom of opinion but attacks on the freedom of opinion of others,” he said.

Violation of Freedom of Speech and Censorship

The Human Rights Watch, an international advisory on human rights has sounded warning bells on the impact purported to be attached to the law. According to it, the new German law compelling social media companies to remove hate speech and other illegal content can lead to unaccountable, overbroad censorship and should be promptly reversed.

The impugned law violates one’s right to free speech in two ways. Firstly, it places the burden on companies that host third-party content to make difficult determinations of when using a post or an opinion violates the law. Even courts can find these determinations challenging, as they require a nuanced understanding of context, culture, and law. Faced with short review periods and the risk of steep fines, companies have little incentive to err on the side of free expression, and secondly, it does not make any provision for violation of a person’s right to free speech by a corporate. This can have detrimental impacts on society as the zone credited with very free expression will turn into a possible ‘no-accountability zone’. The arbitrary exercise of power has swept these companies of any legitimate credibility. This legislation is an example of censorship taken to an exaggerated level wherein even judicial conscience cannot save the man from a well-meaning corporate body whose only aim is to escape fine.

Global Impact

Surprisingly, three countries – Russia, Singapore, and the Philippines – have shown aggressive support for the content of the law by directly citing it as a positive example as they contemplate or propose legislation to remove “illegal” content online. It is therefore not surprising that The Russian draft law, currently before the Duma, could apply to larger social media platforms as well as online messaging services. This can completely overhaul one’s right to speak and what censorship must entail in contemporary times.

The Indian Perspective

In the present times, it will be safe to say that India has moved a step forward in the direction of preserving the universal right to speech and maintain its sanctity, especially in a democratic setup. By scrapping down section 66-A of the Information Technology Act that makes it a criminal offense to share content that was “grossly offensive or has menacing character” or information that was known to be “false”, but had been shared persistently to cause “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”. Hate Speech and online abuse are still a problem in India but they have not resorted to arbitrary laws to keep a check over such instances.

Conclusion

The legislative intent behind legislation may be well-founded and in the best interest of a society but modern democracies have certain pillars the lack of which will shake its structure and therefore there must be regulation of laws that directly infringe our rights.

Author: Pragya Jain, Legal Intern at IP and Legal Filings, and can be reached at support@ipandlegalfilings.com.