With the lone exception of child abuse material (“child pornography”), removal of content requires a context-sensitive assessment.
While freedom of speech would normally have to be considered when dealing with content of this nature, “the draft does not allow for that”.
The document also points to the weak approach to reporting in the draft.
Professor Wolfgang Schulz, one of Europe’s preeminent legal experts, has prepared a short critique of Germany’s so-called “Act improving Law Enforcement on Social Networks”, also known under the abbreviation Netz DG.
Professor Schulz criticises the fact that the draft law covers a range of different types of offences, making it difficult to assess its necessity as a means of restricting freedom of speech.
If a law is likely to have the effect of removing legal content, this is a restriction on freedom of speech, as laid down in the basic law, the European Convention on Human Rights and elsewhere.
Professor Schulz also points out that the proposed measures appear to be in breach of Article 3.4 of the E-Commerce Directive.Finally, the document details the unpredictable nature of the fines that could be imposed.
The solitary provision that does focus on offenders is too broad and should be “restricted to particularly grave infringements upon rights only”.More damningly, he points to the key assumptions on which the law is based, arguing that they have been abandoned “for a long time”.Furthermore, he argues that “there are many effective ways of addressing fake news or hateful speech” that should be [implicitly, were not] taken into account to minimise potential negative effects on freedom of speech”.EDRi’s suggested amendment to recital 31 of the Audio-Visual Media Services Directive, adopted by the European Parliament’s Civil Liberties Committee, raises concerns about the “balance of incentives” for internet companies.In line with the amendment, Professor Schulz points to the negative consequences of the German law for the “incentive structure” for social media companies.In particular, the obligation to report on take-down performance “creates even more incentives for the provider to perform a take-down on request without checking to avoid any self-blaming and -shaming in the report”.