The German NetzDG: A Risk Worth Taking?

The German Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz) (literally: Law on the improvement of law enforcement in social networks – NetzDG) has attracted much media attention since fully entering into force on 1 December 2017. This was sparked to a significant extent by a few high profile deletions, including a tweet from the responsible Minister for Justice.

This contribution will give a succinct overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence. In any case, it appears reasonable to let this regulatory experiment play out and observe whether fears over a ‘chilling effect’ on free expression are borne out by the evidence. A review of the law and its effects are is planned after an initial three year operation period, which should deliver ample data and regulatory experience while limiting the scope for potential harm.

The statute in a nutshell

The NetzDG provides compliance regulations for social media platform operators with at least two million users within Germany. Social media networks are defined as internet platforms that seek to profit from providing users with the opportunity to share content with other users and the broader public. Platforms which provide individualised communication services, such as email or messaging apps, as well as platforms providing editorialised content, such as news websites, are explicitly excluded from the scope of the law (§ 1 I NetzDG) ...

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