On 5 April 2017, the German Federal Minister of
Justice's new bill aimed at improving enforcement of
rights in social networks (Entwurf eines Gesetzes zur
Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken;
Netzwerkdurchsetzungsgesetz – NetzDG, the
Bill; see our previous blog) has, in a slightly revised version, been adopted by the Federal
Cabinet (Bundeskabinett) and is now ready for discussion
by the German Parliament.
As we reported earlier, a number of concerns
surrounding the Bill were raised after its announcement. Now, as an
immediate response to the Federal Cabinet's adoption of the
Bill, a number of stakeholders – including industry
associations, net activists, lawyers and journalists – have
formed an alliance to oppose the Bill. The alliance has issued a
joint 'Declaration on Freedom of Expression'
(Declaration), which is available in the English
The Declaration emphasizes the essential role of the freedom of
expression, which is a fundamental right under Article 5(1) of the
German Constitution (Grundgesetz).
Notwithstanding this, the Declaration acknowledges that it is
important to effectively sanction criminal and illegal
The Declaration stresses that each individual's fundamental
right of freedom of expression shall not be affected by the
existence of unlawful or criminal content being dealt with, which
shall in particular be the case in relation to content which is in
a gray area. The Bill would create a risk that social networks
would, in order to avoid any exposure to fines under the Bill,
decide to utilize a "fall-back" position, i.e. to delete
content in cases of doubt.
In the view of the signatories to the Declaration, the Bill
does not meet the requirements necessary to adequately protect the
freedom of expression, and the government should instead pursue a
comprehensive political strategy to curb the proliferation of hate
speech and fake news on the internet.
We expect a highly heated debate in the German Parliament, and,
at the same time, an equally animated discussion in political,
financial and legal circles.
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