Internet Intermediary Liability Reloaded - The New German Act on Responsibility of Social Networks and its (In-) Compatibility with European Law

• Author: Gerald Spindler
• Pages: 166-179

2017

Gerald Spindler

166

2

Internet Intermediary Liability Reloaded

The New German Act on Responsibility of Social Networks and

its (In-) Compatibility with European Law

by Gerald Spindler*

© 2017 Gerald Spindler

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Ger ald Spindler, Internet Intermediary Liabilit y Reloaded – The New German Act on Responsibilit y of

Social Network s and its (In-) Compatibility with European Law, 8 (2017) JIPIT EC 166 para 1.

Keywords: NetzDG; responsibility of social networks; Fake News; hate speech; E-Commerce-Directive

ment brought in a new bill called „Netzwerkdurch-

setzungsgesetz“ which should impose on social net-

works fines up to 50 Mio Euro if they do not comply

with obligations to remove illicit content. The article

deals with the structure of the act and its compatibil-

ity with European law, in particular the E-Commerce-

Directive, based upon a legal expertise commissioned

by the German Association of Telecommunication

and Internet Industry.

Abstract: Fake News and hate speech are at

the centre of discussions at least since Donald Trump

won the U.S. elections in 2016. Politicians around the

world fear the influence of social networks and dis-

tribution of fake news that will foster populism as

well as blur the lines to traditional media. Thus, af-

ter having tried self-regulatory mechanisms which

according to the belief of the German Government

turned out to be unsatisfactory the German Govern-

A. Introduction

1

The German parliament has passed a new „Act

improving law enforcement on social networks

[Netzwerkdurchsetzungsgesetz – NetzDG]” which

has been notied to the EU-Commission on 27th of

March 2017.1 The act aims mainly – as the German

notication points out – at

„the introduction of statutory compliance rules for social

networks in order to encourage them to process complaints

about hate speech and other criminal content more quickly

and comprehensively.”

2

The German government states that social networks

(and alike providers) should live up to their

responsibility to immediately remove infringing

* Prof. Dr., University of Goettingen/Germany.

1 Notication Number 2017/0127/D - SERV60. The noticiation

wrongly named the Act „Netzdurchführungsgesetz –

NetzDG“.

content – which according to the statement of the

German government they still do not in a satisfying

manner.2

3

To achieve a more satisfying level of removing illicit

content and fake news the act provides in principal

roughly two obligations:

•

to report periodically to authorities as well as to

the public their actions concerning complaints

about illicit content and their organization to

handle these complaints

•

to remove in 24 hours content which is

blatantly3 illicit and within 7 days all other

illicit content. Providers may, however, refer

the decision regarding unlawfulness to a

recognised selfregulation institution within 7

2 Notication „Brief statements of grounds”.

3 It is unclear if the German Act will refer to „blatantly” (so

the wording in the notication of the German Government)

or to „manifestly” (as used in the translation of the German

act by the German Government).