The fall of freedom of expression or a revolution in the fight for truth: German parliament says “No, thank you” to fake news

Following the 2016 US presidential election campaign, a significant concern has been the effect of false stories – “fake news” – circulated on social media. Allegedly, 115 pro-Trump fake stories were shared on Facebook 30 million times and 41 pro-Clinton fake stories 7.6 million times. A number of journalists and commentators have suggested that Donald Trump would not have been elected president were it not for the influence of fake news. In view of the upcoming parliamentary elections in Germany in September 2017, the German parliament (Bundestag) adopted the Network Enforcement Act (Netzwerkdurchsetzungsgesetz – NetzDG) on 30 June 2017. The so called “Facebook Act” aims at ensuring that large social networks delete any criminal content as soon as possible. Stakes are high for the social networks because the fines can amount up to five million euros.

Who will be affected by the “Facebook Act”?

The “Facebook Act” applies to telemedia service providers with internet platforms that enable users to exchange, share or make content accessible in order to make profit, i.e. social networks. To fall under the jurisdiction of the “Facebook Act”, such social networks must have at least 2 million users.

Therefore, it is mainly the largest platforms, such as Facebook, YouTube, Twitter and Instagram, which are affected. The good news is that company websites or shops with interactive comment functions generally need not be concerned. What is unclear is whether one-on-one communication providers such as Snapchat or Skype have to adhere to the “Facebook Act”. Bearing in mind the Act’s rather broad definition above, the answer is that they probably fall within its scope .

What obligations are laid down for the social media platforms?

• Platform operators must maintain an effective and transparent procedure for dealing with complaints which is easily recognisable, directly accessible, and constantly available to users.
• Content which is obviously illegal must be removed within 24 hours of receipt of the complaint.
• If it is not obvious whether the content is illegal, a seven-day deadline applies.
• Platforms are required to submit and publish a quarterly report about their activities against illegal content.
• Platforms need to appoint an authorised representative in Germany who is entitled to receive communications, both from public authorities and in civil proceedings.

What is deemed to be “illegal content”?

As the German minister of Justice Heiko Maas said “Freedom of expression is a great asset and it also includes ugly utterances”. With these words in mind, only criminal offences that are expressly mentioned Section 1 (3) of the “Facebook Act” are defined as “illegal content”, including crimes which endanger democracy (e.g. dissemination of propaganda material of unconstitutional organisations, defamation of the President of the Federation), hate speech, insults and general defamation.

What about “fake news”? Fake news is covered by the law if it fulfils the requirements of the aforementioned criminal offences. Particularly relevant will be the provision on defamation. Platforms must therefore delete untrue facts related to another person which may defame, negatively affect public opinion of them, or endanger the creditworthiness of this person.

What are the consequences – the fall of freedom of expression or a revolution in the fight against incitement and fake news in social networks?

The “Facebook Law” pushes operators of platforms into the role of judges because they have to make the decision about the deletion of content themselves. They will, therefore, likely tend to delete content in case of doubt in order to avoid penalties. This leads to many critical voices which argue that the “Facebook Law” is the beginning of private law enforcement.

Our expectation is that the impact will be less dramatic in practice because the “Facebook Law” only applies to a concrete catalogue of crimes and not any wrongful content. A clear advantage for the platforms is that the law does not include the right to request information on the users concerned. Therefore, social media platforms will remain able to protect their user base.

One thing is for sure – the controversial “Facebook Law” will almost certainly provide work for the German courts in the future. Certain parties have already announced that they will assess constitutional complaints against the law.