The German legislature has finalised a legislative process which aims to fight online hate speech and hate crime. The bill, drafted in 2020, was not signed by the federal president, because it contained similar provisions to a law that had been found unconstitutional by the Constitutional Court a month earlier.

In early 2021, the necessary changes were made and the law was finalised in March to become effective on 3 April 2021.

The legislation was inspired by violent verbal and physical attacks which happened against politicians in the past years. 1 June, 2019, the district president of Kassel, Walter Lübcke was shot on his porch. Lübcke was known for his tolerant views regarding refugees, and had been subject to verbal attacks and threats on social media. His death is regarded as the first right-wing politically-motivated murder in modern Germany, but Lübcke was not the first German politician who was violently attacked for his refugee policy: mayors Andreas Hollstein and Henriette Reker survived knife attacks in 2017 and 2015. In both cases, the political motive could be proven, the perpetrators were xenophobic right extremists.

Verbal attacks against politicians have also been discussed by the judiciary which found that politicians have to endure a higher threshold of intensive criticism. Discriminatory online defamation targeting and denigrating women has been seen as a recurring problem in several countries, including Germany (see also Freedom House report on the Internet freedom in Italy. 2019).  Statistics have shown that women refrain from participating in public discourse for fear of being targeted by discriminative online speech and harassment (Geschke/Klaßen et al, Hass im Netz 2019 [pdf]. ; LfM NRW, Hate Speech 2019 [pdf].

The objective of the legal amendment

The purpose of the amendment package is to protect the public discourse against the chilling effect of hate speech and hate crime. Since 2018, NetzDG obliged large media service providers to delete or block content which violated a closed list of criminal prohibitions, in the realm of hate speech. However, simply deleting or blocking this content did not help to stop the tide of increasing extremist expressions in Germany. Therefore, the act aimed at channelling the information about online hate speech and threatening with hate crime into the criminal authorities, extending the scope of cases when access to user data can be granted to the federal criminal police authority and national security services. Beyond that, the law also added new actions to the criminal code to include behaviours which became prevalent in the online context. For example, the crime of “threatening” meant threatening with a crime that entailed at least one-year imprisonment – this did not include threats against sexual self-determination, bodily integrity, or the threat of causing severe material damage – typical online threats.

The controversy and the legislative process

In February 2020, the government proposed its bill, which attracted considerable political attention and disagreement. While it was supported by the governing coalition, it was contested by all other parties in Parliament, but for different reasons. Amending proposals were submitted by the Greens, by the radical right AfD and the FDP, but they were rejected by the Bundestag. The bill was approved by both Houses of the Parliament Summer 2020.

However, the Bundespräsident Frank-Walter Steinmeier had concerns over the constitutionality and refused to sign the bill into law, calling for specified improvements. (This was only the eighth occasion that such a rejection took place since 1949). The reason for the constitutional concern was the reporting obligation of social media platforms, which gave access to user data, including their password and other information which gives access to the user profile.

This was deemed as overbroad and lacking sufficient safeguards, in line with a decision of the German Constitutional Court of 27 May 2020 related to the federal police law and the telecommunications act granted almost unlimited access to user data (Constitutional Court decisions 1 BvR 1873/13, 1 BvR 2618/13).

Such a broad provision was found to violate the constitutional rights to informational self-determination, and to telecommunication secrecy. The decision required that a higher threshold is applied for those cases where data is required, and stronger safeguards of the individual rights are provided. The wider the scope of cases in which data can be accessed, the stronger safeguards are to be secured, and the reverse (similarly to the idea of a double door), said the court.

To overcome the constitutional problem, a new “repair act” (Reparaturgesetz) was passed (Gesetz zur Anpassung der Regelungen über die Bestandsdatenauskunft vom 30.03.2021, BGBl I, 448) to narrow the scope of cases in which authorities may demand access to user data to specified criminal actions.

At the same time, an amendment to the law on intelligence services has been made as well, to safeguard the personal rights to data protection and to supervise the process. The wording of the conditions has become more concrete: instead of the requirement of “actual indications” to access the data, “facts” are needed to “justify the assumption”. In addition, a quasi-judicial control body has been created, called the Independent Control Council, which consists of six members selected from among experienced members of the Federal Court of Justice or the Constitutional Court.

The recommendations are made by the president of the named judicial bodies to the parliamentary control body which selects with simple majority. The parliamentary control body also needs to be regularly informed about data access by the Independent Control Council. These amendments have been passed on 25 and 26 March 2021 and the Federal President signed them into law together with the legal package against hate crimes, on 30 March 2021.

Details of the new law

The amendment package induces changes in several different laws: the Criminal Code, the law on criminal procedure, NetzDG, Telecommunication Act, the law on the Federal Criminal Police Authority (Strafprozessordnung (StPO), Netzwerk-durchsetzungsgesetz (NetzDG), Telemediengesetz (TMG) Bundeskriminalamtgesetz (BKAG)).

Reporting obligation

The core content of the law is to require social media platforms to report, besides remove or block, certain criminal expressions to the Federal Criminal Police Authority (Bundeskriminalamt) (effective from 1 February 2022). The criminal expressions to be reported are defined in a close list which will form §3a (2) of NetzDG, after becoming effective. §3 of NetzDG lists those criminal expressions which are to be removed and blocked, and after §3a steps into effect, some of these will need to be reported, as well.

These are: dissemination of child pornography, dissemination of propaganda and symbols of anti-constitutional organisation, preparation of a violent action against the state, education and support of criminal and terroristic associations, incitement to hatred, representation of violence, while. These crimes are deemed to be identifiable at first sight, without a tedious balancing exercise. Insult and defamation are not regarded as so easily identifiable in light of the freedom of expression considerations, therefore they do not need to be reported. The platform should decide about the reporting, if, in its view, the content is criminal and has lasting negative effects on the exercise of freedom of expression in the social media – by silencing other users through intimidation.

The data to be reported includes personal data and IP address of the user. To safeguard user rights, social platforms have to inform the user within four weeks (!) after the data transfer. The law enforcement agencies also have the right to demand passwords from social media platforms, but the scope of criminal act has been narrowed to comply with the constitutional requirement: only in case of suspicion of severe criminal actions such as creation of a terrorist group, homicides and severe corruption cases, and only through a judicial order (§ 15a TMG).

Beyond this, it is also possible for authorities responsible for public security and order – i.e. the law enforcement agencies, including police, but not including the intelligence services –, to demand user passwords in order to avert a concrete danger threatening life, limb or freedom of individuals for sexual self-determination,  the Federation or a Land, the democratic order and public goods whose threatening affects the foundations of human existence, if there is a judicial order (15b TMG).

Changes to the criminal law

The criminal prohibition of praising and approving of serious crimes have been extended to crimes that have not yet been committed, but are publicly approved in a way which is likely to disturb the public peace (§140).

Delicts of sexual assault, sexual coercion and rape (Section 177 Paragraphs 4 to 8 StGB) have been inserted among crimes against the public peace. The crime of threatening has been extended to include threatening with an illegal act against the physical integrity, threats against sexual self-determination, personal freedom or against something of great value (such as, for example igniting the car of the victim), directed against the threatened persons or someone close to them (§241). Threatening with crimes against the public peace has been completed with the threatening with a lower threshold of bodily harm (‘dangerous bodily harm’) (§ 146).

Anti-Semitic motive is now mentioned explicitly as aggravating circumstance, which may be an important symbolic action by state policy, but technically it does not induce a change in the already existing regulation which already mentioned racist and xenophobic motives along with “other inhuman motives” (sonstige menschenverachtende“ Beweggründe“) (§46).

The penalty for criminal insult has been raised to two years from one year, if committed publicly or by disseminating an information material (§185, together with §11[3]). Insult and defamation of politicians – which had been subject to aggravated penalty before, if it made a burden on their public activity – now extends to special protection of local politicians as well (§188). The extension was seen as necessary because local politicians face increasing messages of hatred and threats, causing difficulties to find candidates for local elections.

For persons who are affected by threats, insults and hostile attacks due to their professional or voluntary activity, it will be easier to block their own personal information in the official registry, to protect their privacy. The already existing protection of first responders and rescue personnel against attacks or violent threats while on duty has been extended to medical personnel as well (§ 115).

Criminal defamation, racial defamation

Higher protection of political actors with criminal defamation is generally not beneficial for freedom of expression. As the Berlin court held in a case initiated by an aggrieved politician, who had suffered regular bitter verbal attack, a politician needs to accept even the worst verbal abuse on Facebook (LG Berlin, 09.09.2019 – 27 AR 17/19).

It does not reflect the principle of people’s sovereignty, on the contrary: persons in power should not have more right and more protection than ordinary people. Through their position, they have more power to speak and act against defamation than the average person. For violations of reputation the legal tool of civil defamation can provide adequate redress. However, if the expressions extend beyond defamation and insult and turn into threats, that is bound to cause a chilling effect on the public activity of the politician, therefore its restriction is justified.

With motives of racism and discrimination, defamation turns into a version of hate speech. In Germany, Volksverhetzung is applicable also against expressions targeting individuals because of their belonging to a group, if it is done in a way which disturbs public peace (§130 StGB). Unsanctioned hate speech against any person gives the signal to society that exclusion and denigration that group of persons is acceptable, and may silence the attacked persons’ speech and actions (Waldron, J. (2012). The Harm in Hate Speech (pp. 105-143). Cambridge, Massachusetts; London, England: Harvard University Press).

But is it really necessary to have a higher threshold and penalty if a political actor is attacked? On the one hand, if a political actor is silenced that is an extra harm for society, especially if that actor represented an otherwise disadvantaged minority. This may also discourage other members of that minority (including women, for instance) to participate in politics and speak out for themselves and public causes. Politicians are in the public eye and hate speech directed against them may be more prevalent. Their attacks are symptomatic and symbolic, therefore reactions to those should also be symbolic, and perhaps, exemplary. But, on the other hand, no ordinary person should be less protected than a politician. A general protection against any person should be sufficient to provide protection for a political actor as well.

The expected effect

Critics argued that the law is yet another restriction on freedom of speech, by exposing users’ personal data for the criminal authorities. In particular, the social media platforms remove and report the named types of criminal content based on their own judgement, without a judicial or even professional legal review. On the one hand, the listed criminal prohibitions are so straightforward, that it is thought to be clear at first sight, whether a content violates them, without the need to balance conflicting human rights. On the other hand, large online platforms – to which NetzDG applies (at least two million subscribers in Germany) might be able to afford at least an in-house expert who could responsibly decide in the question, similarly to data protection officers who are employed by banks and similar corporations.

The second part of the criticism is thought to be resolved through the amendment to the reporting obligation which foresees a judicial order to receive passwords and other data which allow access to the users’ profiles or even devices.

Authorities expect a large wave of reporting therefore several hundred new positions are created in the ministry. To be able to deal with the increased workload, a new department was created within the Federal Criminal Police Authority (Bundeskriminalamt).

On the positive side, the law is expected to diminish the volume of online threats and discriminatory defamation against persons who participate in public life. The aggressive tone and personal attacks might become less prevalent in social media, hopefully with a lasting effect on communication culture, making hate speech less accepted socially. Aggression may find other ways to get manifested, however, those ways will entail more social costs for the perpetrators (e.g. risking offline actions), or get less attention.

Relationship to DSA

The draft Digital Services Act (DSA) provides that online platforms should promptly inform the law enforcement or judicial authorities of the Member State when they encounter a serious criminal offence involving a threat to the life or safety of persons (Article 21). The serious criminal offence lacks further specification, but the reporting obligation extends also to the cases where such a criminal offence has taken place, is taking place, or is likely to take place. Making a judgement of the “likelihood” of a serious criminal action based on information that appears in social media might be beyond the capacity of online platforms. Compared to the narrowly tailored German regulation, this rules is more apt to result excesses in reporting speech. At the same time, the DSA does not specify what data needs to be provided to criminal authorities, which might be then subject to the regulation of the Member State which receives the report (see section 2, Article 21).

Judit Bayer, PhD. Habil. Schumann Fellow, Institute for Information, Telekommunication and Media Law, WWU Münster