What is the Network Enforcement Act, or NetzDG?
Germany’s Network Enforcement Act (Netzwerkdurchsetzungsgesetz or NetzDG) entered into full force on January 1, 2018. Known colloquially as a “hate speech law,” it is arguably the most ambitious attempt by a Western state to hold social media platforms responsible for combating online speech deemed illegal under the domestic law. Other countries, like France, are using NetzDG as a basis for proposed legislation, making analysis of NetzDG urgent and important.
It is important to clarify that NetzDG does not create new categories of illegal content. Its purpose is to enforce 22 statutes that already existed in the German criminal code on the internet and to hold large social media platforms responsible for their enforcement (that’s what durchsetzungs means –an enforcement).
The 22 statutes include categories such as “incitement to hatred,” “dissemination of depictions of violence,” “forming terrorist organizations,” and “the use of symbols of unconstitutional organizations.” NetzDG also applies to other categories, such as “distribution of child pornography,” “insult,” “defamation,” “defamation of religions, religious and ideological associations in a manner that is capable of disturbing the public peace,” “violation of intimate privacy by making photographs,” “threatening to the commission of a felony” and “forgery of data intended to provide proof.” The complete list is below. The law itself is here. A brief summary by the German government is here.
The law applies to all for-profit social media platforms with at least two million registered users in Germany. Traditional media is exempt, as are messaging services such as WhatsApp and Telegram designed for individual communication. Under the law, social networks are obliged to set up an effective complaint mechanism and to produce a report every six months on how they have handled complaints. Social networks have the additional option of setting up a self-regulation authority, to whom they can outsource the decision on content. The platforms must designate a domestic point of contact to receive information requests from German law enforcement, to which they must respond within 48 hours of receipt.
Complete List of the Criminal Offences Included in the NetzDG
- §86 (Dissemination of propaganda material of unconstitutional organizations)
- §86a (Using symbols of unconstitutional organizations)
- §89a (Preparation of a serious violent offence endangering the state)
- §91 (Encouraging the commission of a serious violent offence endangering the state)
- §100a (Treasonous forgery)
- §111 (Public incitement to crime)
- §126 (Breach of the public peace by threatening to commit offences)
- §129 (Forming criminal organizations)
- §129a (Forming terrorist organizations)
- §129b (Criminal and terrorist organizations abroad; extended confiscation and deprivation)
- §130 (Incitement to hatred)
- §131 (Dissemination of depictions of violence)
- §140 (Rewarding and approving of offences)
- §166 (Defamation of religions, religious and ideological associations)
- §184b in connection with
- §184d (Distribution, acquisition and possession of child pornography; Distribution of pornographic performances by broadcasting, media services or telecommunications services)
- §185 (Insult)
- §186 (Defamation)
- §187 (Intentional defamation)
- §201a (Violation of intimate privacy by taking photographs)
- §241 (Threatening the commission of a felony)
- §269 (Forgery of data intended to provide proof)
Implementation and First Reactions
The law came into force on the first day of 2018.
A few days after, prominent AfD (Alternative für Deutschland) politician Beatrix von Storch saw one of her social media posts removed from Twitter and Facebook under the law. Widespread media coverage of this incident, including the post’s content and its potential illegality, seemed to confirm fears of the Streisand effect, or what one journalist dubbed the Storch effect. The AfD has marshalled NetzDG as part of a broader argument that its voice and opinions are being silenced.
Germany’s liberal party, the FDP, has claimed that NetzDG’s restrictions on freedom of expression violated the German constitution. Senior FDP politicians stated that they refrain from posting on social media because of NetzDG. After their parliamentary initiative to revoke the law failed, the FDP sued the government in November 2018 seeking repeal of NetzDG. The case is currently pending before the Cologne Administrative Court (Verwaltungsgericht), though some experts give it little chance of success because the FDP has not produced specific examples.
The best evidence to date about the specific effects of NetzDG comes from the law’s transparency requirements. Four major online platforms released their first transparency reports in June 2018: Google (i.e., YouTube), Facebook, Twitter, and Change.org. This provoked another round of debate about the law’s impact and efficacy.
The data below only cover removal decisions arising from NetzDG complaints, and do not account for other removals based on other types of complaints, referrals, or injunctions. Furthermore, the metric of takedowns does not reveal whether NetzDG has achieved its purpose of combating hate speech and other online excesses. The differences between complaint mechanisms and the reports themselves make certain types of comparison difficult. It is also hard to know how the volume of content removal compares to the overall volume of illegal speech online. Key results are summarized below:
Overview of reported number by platform
|Platform||Total Items Reported||Total Removal Rate||Removal Within 24hrs|
|Google (YouTube)||241,827||58,297 (27.1%)||93.0%|
|264,818||28, 645 (10.8%)||93.8%|
Source: Echinson & Knodt, 2018
It is important to remember that the “Report” button under the right arrow on each post on Facebook does not take the user to file a violation against the NetzDG. The “Remove” button raises a flag to Facebook, who will investigate the content under its own rules and time. The NetzDG form sends the alert to the platform, which then follows the steps specified in the law and reports the numbers of case received to the government.
Despite Facebook’s size, it received significantly fewer reports than YouTube and Twitter. More than 100 times fewer, in fact, because Facebook’s NetzDG complaint form was buried under many steps.
YouTube and Twitter integrated NetzDG complaints into their regular “flagging” interface, which can be accessed through direct links next to every piece of content. Facebook, by contrast, placed their complaint form on a separate page, requiring multiple clicks to access. The report data suggest that this design choice had massive impacts on the actual uptake of NetzDG complaints.
Scholars Ben Wagner, Marie-Therese Sekwenz, Krisztina Rozgonyi and Jennifer Cobbe presented a study at the ACM Conference on Fairness, Accountability, and Transparency in which they describe how companies struggle to ensure that transparency is meaningful in practice. They affirm that this challenge is particularly great when coupled with the widespread usage of dark patterns-design techniques used to manipulate users.
In June, 2019, Germany fined Facebook for under-reporting complaints.
Facebook explains what happens after the user files a report
If you submitted a report through the NetzDG reporting form, you’ll receive an automated email that has information about your report, including a unique report number. You should save this number in case you need to contact us about your report.
We may respond to your report and ask for more information. If you receive an email from us, please respond directly to that email so that our team can continue to look into your report.
When we remove access to content in response to a report under the NetzDG, we will inform you and the person who posted the content of our decision and the reasons for that decision. Please note that if you report content through the NetzDG form, we will not identify you to the person who posted it unless we need additional information from that person as set forth in NetzDG section 3 subsection (2) number (3) letter (a).