Enforcement through the Network: The Network Enforcement Act and Article 10 of the European Convention on Human Rights

By McMillan, Imara | Chicago Journal of International Law, Summer 2019 | Go to article overview

Enforcement through the Network: The Network Enforcement Act and Article 10 of the European Convention on Human Rights


McMillan, Imara, Chicago Journal of International Law


I. Introduction

In January 2018, Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken1 (hereinafter the Network Enforcement Act) came into effect.2 Passed in late 2017 by the Bundestag, the German federal parliament, the Network Enforcement Act was designed to combat hate speech, radicalization, and fake news online.3 The crux of the law provides that when a social media company receives a complaint about a piece of controversial content, if that company has more than two million German users4 it must spring into action to determine whether the content is "manifestly unlawful" according to eighteen separate provisions of German criminal law.5 If the company determines that the content is unlawful, access to it must be removed within twenty-four hours.6 For borderline cases, companies have seven days to remove the content.7 The consequences for noncompliance are fines of up to five million euros (5.8 million dollars in December 2018).8 There are currently no consequences for overpolicing speech and no mechanism to contest violations.

Since the law went into effect in January 2018, it has faced a bevy of complaints. This Comment focuses on one-whether the law violates the freedom of expression clause, Article 10, of the European Convention on Human Rights (ECHR).9 Although Heiko Maas, Germany's current Minister of Foreign Affairs who helped introduce the bill, argued that the kind of content which the bill seeks to have removed "damages . . . our culture of debate, and ultimately freedom of expression,"10 many, including Facebook, claim that the law does the opposite and violates freedom of expression under not only the German constitution but a host of international treaties.11

Because of the punitive nature of the fines, social media companies are incentivized to err on the side of caution and remove any content that is reported. This includes unlawful content, but also clearly satirical tweets parodying actual illegal content12 and heated, but ultimately harmless,13 comments.14

Facebook has allegedly recruited "several hundred staff' to deal with complaints.15 For some, such as Bernhard Rohleder, CEO of Bitkom, a digital industry association which represents more than 2,600 German tech companies,16 it appears as though Germany is privatizing the administration of justice and outsourcing it to large U.S. companies.17 On the other hand, the rise of "fake news" and the use of social media by foreign actors to influence people's thoughts and ideas are increasingly large national security and safety concerns.18

To say that the law is controversial is an understatement. However, whether the European Court of Human Rights (ECtHR) would find that it in fact violates freedom of expression is another story. While the law, and the way the lower courts are currently enforcing it, may harm individual freedom of expression, the legitimate national security and safety concerns could allow for the law to be upheld without further adjustments. This would alter the way these claims get handled. That is, rather than the government or another complaining individual having to bring their case to the courts to remove speech, the affected individuals will have to bring their cases to court to get their accounts and posts reinstated. This could create a severe enough chilling effect on speech to warrant the ECtHR overturning at least part of the law. However, as this Comment explains, it is debatable that the Network Enforcement Act is uniquely to blame for this issue, and it is unclear whether removing the law will solve these free expression claims.

Section II addresses the history of the Network Enforcement Act. Although current discourse relating to controlling online speech has been centered on fake news in the wake of the U.S. 2016 election, the passage of the Network Enforcement Act is the culmination of a decade of growing tension in Europe between lawmakers and social media companies as both attempt to combat terrorism. …

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