Offener Brief an das UN-Kommissariat für Menschenrechte in Genf wegen Netzwerkdurchfuehrungsgesetz

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The obligations placed upon private companies to regulate and take down content raises concern with respect to freedom of expression. A prohibition on the dissemination of information based on vague and ambiguous criteria, such as “insult” or “defamation”, is incompatible with article 19 of the ICCPR. The list of violations is broad, and includes violations that do not demand the same level of protection. Moreover, many of the violations covered by the bill are highly dependent on context, context which platforms are in no position to assess. In addition, the vague definition of “social network” raises questions as to the range of actors covered by the scope of the bill. According to the wording, it would cover all kinds of providers, including messaging services. At the same time, according to the explanatory notes to the bill, the law would not apply to email and messengers.


The provisions imposing high fines for non-compliance with the obligations set out in the bill raise concerns, as these obligations as mentioned above may represent undue interference with the right to freedom of expression and privacy. The high fines raise proportionality concerns, and may prompt social networks to remove content that may be lawful.


The risk appears even higher considering the strict time periods of 24 hours and 7 days according to which social networks must assess and remove content in violation of domestic law. The short deadlines, coupled with the afore-mentioned severe penalties, could lead social networks to over-regulate expression - in particular, to delete legitimate expression, not susceptible to restriction under human rights law, as a precaution to avoid penalties. Such pre-cautionary censorship, would interfere with the right to seek, receive and impart information of all kinds on the internet.


Further, I am concerned with the lack of judicial oversight with respect to the responsibility placed upon private social networks to remove and delete content. Any legislation restricting the right to freedom of expression and the right to privacy must be applied by a body which is independent of any political, commercial, or unwarranted influences in a manner that is neither arbitrary nor discriminatory (A/HRC/17/27). The liability placed upon private companies to remove third party content absent a judicial oversight is not compatible with international human rights law.


I am also concerned at the provisions that mandate the storage and documentation of data concerning violative content and user information related to such content, especially since the judiciary can order that data be revealed. This could undermine the right individuals enjoy to anonymous expression (A/HRC/29/32). Such restrictions on anonymity, in particular absent judicial oversight, facilitate State surveillance by simplifying the identification of individuals accessing or disseminating prohibited content. By requiring complaints and measures to be documented and stored for an undisclosed amount of time, without providing further protection mechanisms against the misuse of such data, individuals become more vulnerable to State surveillance. These provisions also allow for the collection and compilation of large amounts of data by the private sector, and place a significant burden and responsibility on corporate actors to protect the privacy and security of such data (A/HRC/23/40).


Finally, I am concerned at the possibility that users claiming a violation would be entitled to be given access to subscriber data without prior court approval. The protection of anonymity, including protection against unlawful and arbitrary interference by state or non-state actors, plays a critical role in securing the right to freedom of opinion and expression. The absence of a


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