Expert opinion by Dr. Matthias C. Kettemann
as expert for the public hearing on the Network Enforcement Act at the invitation of the Committee on Legal Affairs and Consumer Protection of the German Bundestag on 15 May 2019.
- The process of adopting the Network Enforcement Act (NEA) has fueled the debate on law enforcement in private communication spaces with relevance for public communication. With a view to the proposals on hand and the debate in the Legal Affairs Committee, as well as drawing on the substantial scientific literature and the criticism voiced by a large majority of social actors, the legislator now has a sufficient knowledge base to further develop NEA.
- From a jurisprudential point of view, it seems necessary to strive for a regulation of providers of social networks that is sensitive to fundamental rights, adequate to the risks, and up-to-date in the context of a changed media use behaviour of the population. The objective of this process seems to be a carefully coordinated regulation of platforms and telemedia, which protects particularly vulnerable groups and secures the Internet as a space for the exercise of fundamental rights. In addition, in the case of legislative approaches to platform regulation, the principle of liability privileges for service providers, which is binding under European law and represents a normative limit, must always be taken into account.
- The Recommendation (2018)2 of the Committee of Ministers of the Council of Europe to Member States on the role and responsibility of Internet intermediaries, also adopted by Germany, should play a role in the process of parliamentary consideration of NEA.
- The Network Enforcement Act (NEA) was aimed at improving law enforcement in social networks. If it has achieved this goal cannot be determined reliably due to a lack of empirical data. However, NEA has certainly made the debate on the governance of expressions of opinion among providers of social platforms more public. In addition, platform providers - not only, but also - have invested in their moderation capacities for the German-speaking region due to NEA and expanded these disproportionately to a greater extent. Thanks to the debates about NEA - and the socially demanded more transparent appearance of important service providers - the level of knowledge about filtering practices is much higher than at the time the law came into force.
- The transparency reports required by NEA are helpful, but still not meaningful enough, and the mandatory information in the law is not sufficiently outlined. According to the current state of research, no empirically reliable statements can be made on important questions. If the Bundestag wishes to be able to make concrete statements on the effect of NEA (which is reasonable), then the requirements for transparency reports must increase.
- The central constitutional objections to the NEA relate, as is well known, to the compatibility of the de facto incentivisation of "overblocking" (to avoid liability in cases of doubt) with the fundamental right of freedom of expression. This structural imbalance to the detriment of freedom of expression must be resolutely countered in the light of the importance of the balance between fundamental rights. Possible steps include a reduction of the list of offences covered by the law, at least the removal of the offences committed on application, as well as the introduction of an easy-to-use recovery claim for erroneously deleted content.
- A privatised law enforcement structure such as the NEA does not reflect the importance of hybrid private spaces with crucial relevance for both private and public communication. The legislator must always consider to what extent the "policing" of expressions of opinion in the Internet context should be placed in the hands of private actors whose role between state and people has not yet been sufficiently outlined in law.
- The Federal Office of Justice (BfJ) is not the appropriate body to use transparency reports as control instruments by means of procedures in accordance with the Act on Administrative Offences. As a dependent authority, its role is problematic since a ministerial intervention to sanction individual NEA-implementation approaches by service providers is not excluded by law. Even the legally stipulated establishment of regulated self-regulation has not yet been certified by the BfJ, although an application has been submitted by the FSM in December 2018.
- As far as it is known, neither a comprehensive legal impact assessment nor a human rights impact assessment was carried out. Statements on ministerial law monitoring have so far not been made public. The process of evaluating The Network Enforcement Act (NEA) seems to have been initiated without any comprehensive connection to existing debates in law and media studies. It is becoming apparent, for example, that deletions of illegal content without criminal prosecution motivate repeat acts and do not lead to a rethink; the regulatory purpose of NEA is thus in tension with the regulatory content.
- It should be considered that the parliamentary debate on NEA also weighs up recent scientific findings on mediatisation and media convergence as well as on the prioritisation of media-mediated communication. The sustainable reform of the media and communications system in Germany and Europe is probably one of the central keys to securing social cohesion for the next decade. The new version with NEA is in this light only a first step, but nevertheless a very important one.