Graduating from ‘new-school’ – Germany’s procedural approach to regulating online discourse

ABSTRACT

For some time now, media regulators in Germany and beyond have been trying to cope with the rise of digital intermediaries like social networks and search engines. In this context, the German Network Enforcement Act (‘NetzDG’) has become the epitome of the concept of new-school speech regulation: the increasing co-optation of intermediaries for governmental content moderation – with all its potential harms to free expression and democratic discourse. Contrary to this trend, however, recent legislative measures in Germany, including the Interstate Media Treaty (IMT), suggest that the country is exploring new avenues in digital intermediary regulation. Not only does the new German legislation focus on procedural instead of substantive aspects of content moderation, offering a case study for concepts promoted by recent literature on platform regulation. By introducing a positive bias for certain ‘content of value,’ the country also includes the role of beneficial content in its regulation. This paper analyzes the new German countermovement against new-school regulation and presents its potential impact for future regulatory concepts.

KEYWORDS:

• Social media
• law
• regulation
• intermediaries
• platform regulation
• NetzDG

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Due to this paper’s focus on speech regulation of media and user generated content, the terms platform and intermediary will be used interchangeably.

2 Platforms have 24 h to remove ‘manifestly unlawful’ content and seven days for all other unlawful content. ‘Unlawful’ in the NetzDG’s sense is limited to a list of 22 statutory offenses of the German Criminal Code (GCC).

3 For a more detailed analysis of the different dimensions of the criticism against the original law see Wischmeyer, 2018, pp. 11–19; generally Kettemann, 2019; Liesching, 2018; Schulz, 2018, pp. 6–9.

4 For the concept of collateral censorship see Balkin (2014, pp. 2309–12). In addition, numerous business and civil society organizations as well as several scholars signed a ‘Declaration on Freedom of Expression,’ arguing the NetzDG put the principles of free expression into question (Digitale Gesellschaft e.V., 2017). And even the OSCE and the Council of Europe issued critical statements (Muižnieks, 2017; Organization for Security and Co-operation in Europe (OSCE), 2017).

5 Another NetzDG obligation is designating a mandatory domestic authorized recipient (sec. 5 NetzDG) to spare both the trouble and the expense of international mutual assistance requests.

6 Twitter’s transparency reports can be found at https://transparency.twitter.com/en/reports/countries/de.html; Facebook publishes its reports at https://de-de.facebook.com/help/1057152381103922; Google’s can be found at https://transparencyreport.google.com/netzdg.

7 The numbers refer to the transparency reports for the period between January and June 2020. While most companies report the numbers of content items, Facebook refers to the number of complaints, where one complaint can contain several content items.

8 Accessible at https://transparencyreport.google.com/netzdg/youtube.

9 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Nov. 6, 2019, Case No. 1 BvR 16/13, para. 88, http://www.bverfg.de/e/rs20191106_1bvr001613en.html.

10 However, the respective decisions of the FCC are still only closing in on social media, without having bound digital social networks to fundamental rights just yet. (For an overview of respective judgements by higher regional courts, see Friehe, 2020, p. 1699; also, Zurth, 2020, pp. 26–29.)

11 Bundesgerichtshof [BGH] [Federal Court of Justice], Jul. 29, 2021, Cases No. III ZR 179/20 and III ZR 192/20, https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2021/2021149.html.

12 The IMT’s non-discrimination provision (sec. 94 IMT) will be covered below. Other provisions include for example minor obligations like the designation of a domestic authorized recipient for administrative offense proceedings (sec. 92 IMT) and the submission of necessary documents upon request (sec. 95 IMT).

13 Due to the necessary specialized knowledge, the public will probably be represented by regulatory expert audiences.

14 The IMT does only feature a non-discrimination clause for certain public value content, as will be shown below.

15 Meanwhile, the EU Commission’s Digital Services Act draft already includes further reaching provisions in art. 29.

16 In fact, for the providers of such content, sec. 19(1) IMT establishes a duty to ‘comply with recognized journalistic principles.’

17 According to sec. 2(2)(15.) IMT, a user interface is ‘a textually, visually or acoustically mediated overview of offers or contents of individual or several media platforms, which serves for orientation and directly enables [their] selection […].’ Intermediaries like Facebook, however, are not covered by this provision.

18 Balkin himself has already argued that this category is necessary to make digital media companies constructive contributors to the digital public sphere (2020, p. 19).

Additional information

Notes on contributors

Torben Klausa

Torben Klausa is a doctoral researcher at Bielefeld University's faculty of law and a visiting researcher at the Berlin Social Science Center. He studied law, political science, and public policy in Bonn, Washington, DC, and Berlin.