In March 2017, Germany’s minister of justice, Mr. Heiko Maas, released a new draft law “for the improvement of law enforcement in social networks” (Entwurf eines Gesetztes zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken).  The new draft law stipulates new regulations for social networks to fight hate speech and “fake news” and provides for high fines of up to EUR 50 million for non-compliance.  Individuals, for example board members, can be fined up to EUR 5 million. 

To date, the draft law is a German initiative, but Heiko Maas indicated that he wants to introduce the draft to his colleagues in the European Justice and Home Affairs Council with the goal of escalating the initiative to the European level.

With the new law, the minister of justice admonishes social networks to handle user complaints about hate speech and other criminal content in a quicker and more comprehensive way than in the past.  In the reasoning section of the draft, the minister refers to a recent study finding that Facebook allegedly only deleted illegal content in 39 percent, and Twitter only in 1 percent, of the cases following a complaint; only YouTube reached a level of 90 percent.  Based on these statistics, the minister explains that he is no longer willing to rely on the social networks’ pledge to improve the situation.

The subjects of the new compliance regulations are social networks with more than two million users.  In Germany, the new compliance regulations therefore primarily will affect Facebook, YouTube and Twitter, all of which have already reserved rights in their respective terms of use to remove illegal content.

The draft law, requires, inter alia:

• quarterly reports from social networks about their handling of hate crimes and other criminal content;
• the implementation of an effective complaint managing mechanism; and
• the appointment of a domestic legal representative for service of lawsuits.

The quarterly reports must include general descriptions of the social networks’ efforts to fight criminal conduct on their platforms, the implemented complaint mechanism, complaint management, and the number of complaints filed.  Moreover, social networks must disclose how many posts have been deleted following a complaint and indicate the time period between receipt of the complaint and the deletion.

A key section of the draft law addresses the handling of complaints about “illegal content.”  “Illegal content” is defined by reference to enumerated provisions of the German Criminal Code; only content that constitutes an offense pursuant to these provisions (e.g. “public incitement to crime”) are within the scope of the new law.  The social network must decide whether the content constitutes an offense and is therefore subject to deletion.

The draft law distinguishes between “content that is illegal on its face,” which has to be removed within 24 hours, and “other illegal content,” which must be removed within a deadline of 7 days following the complaint.  The same applies to copies of the illegal content on the platform.  The longer 7-day period shall enable social networks to review content, which is not illegal on its face, more diligently and to discuss it with the author, if appropriate.  Social networks must save the removed content for 10 weeks for evidence purposes.

The draft law also suggests that regulators change sections of the German Telecommunication Act to make it easier for users to obtain the identities of the authors of illegal content.

The draft law now goes to Parliament for further consideration.  The ministry’s goal is to get the new law adopted in the course of this legislative period.   It remains to be seen, however, whether the adoption will be such an easy run.

Specifically, some critics argue that the short deadlines for the removal of content – which is atypical for German laws – in combination with high fines may cause social networks to delete too much content in order to minimize the network’s risk exposure under the draft law, thereby impairing freedom of speech and leading to censorship.  Critics also say that law enforcement is basically transferred to social networks, which are responsible for the deletion. 

In the light of the criticism, further lively discussions are anticipated before the act will enter into force.