Section 3(2) of the bill mandates that after receiving a user complaint, “social networks” must assess whether content is a violation of German law, and delete or block “violating content” within 7 days of receiving the complaint, or delete and block “violating content” within 24 hours when content is in “clear violation” of law. It also requires that “violating content” be stored in Germany for ten weeks.
Section 3(3) of the bill mandates that all complaints and measures in response be documented in Germany for an undisclosed amount of time.
The bill defines “social networks” as “tele-media providers who operate commercial platforms that allow users to exchange or share any kind of content with other users or make such content accessible to other users”, excluding “platforms with journalist content for which the platform operation takes full responsibility”.
The draft bill defines “violating content” as content under Sections 86
(dissemination of propaganda material of unconstitutional organizations), 86a (using symbols of unconstitutional organizations), 89a (preparation of a serious violent offence endangering the state) 90 (defamation of the president), 90a (defamation of the state and its symbols), 90b (anti-constitutional defamation of constitutional organs), 91 (encouraging the commission of a serious violent offence endangering the state), 100a (treasonous forgery), 111 (public incitement to crime), 126 (breach of the public peace by threatening to commit offences), 129 to 129b (forming criminal and terrorist organizations, domestically and abroad), 130 (incitement to hatred), 131 (dissemination of depictions of violence), 140 (rewarding and approving of offences), 166 (defamation of religions, religious and ideological associations), 184b (distribution, acquisition, and possession of child pornography), 184d (distribution of pornographic performances by broadcasting, media services, or telecommunications services), 185 to 187 (insult and defamation), 241(causing the danger of criminal prosecution by informing on a person) and 269 (forging of data intended to provide proof) of the German Criminal Code.
The draft bill, section 7 would amend the Telemedia Act (Telemediengesetz) to expand the list of grounds for “service providers” to provide information on a user’s inventory data to include the enforcement of “rights that enjoy absolute protection” following a request from law enforcement. These data claims do not require prior court approval.
Section 4: Administrative Offense and Fines
Under section 4(2) of the bill, social networks that violate the bill may be subject to a fine between 50,000 EUR and 5 million EUR. Moreover, section 4(2), establishes that section 30(2) third sentence of the Ordnungswidrigkeitengesetz (Act on Regulatory Offences) applies, which means that the violation of the bill is classified as a regulatory offence that can justify a fine up to ten times the maximum fine. Under this provision, social networks that violate the bill may therefore be subject to a maximum fine of 50 million EUR.
The State has a legitimate interest and responsibility to protect against terrorism, child pornography, and hate speech that constitutes incitement to discrimination, hostility or violence. The question that arises relates to the way in which the bill seeks to achieve legitimate objectives, in particular the responsibilities it places upon private companies to regulate the exercise of freedom of expression, and whether the measures proposed by the bill would be lawful under international human rights law.