Germany’s push for tighter tech regulation

German lawmakers are making the case for tighter obligations for online platforms in the upcoming EU legislation, as they fear that it could produce weaker rules than their current national framework, EURACTIV Germany reports.

Germany has already made the taming of tech giants one of its main priorities in 2017 when the German Network Enforcement Act (NetzDG) was first passed. The NetzDG has a similar scope to the EU Digital Services Act (DSA), as both laws introduce obligations for the tech sector.

The German law has tight obligations for online platforms, for instance forcing those with more than two million users to scan their social media platforms for illegal content and hate speech and to delete them if necessary. With the DSA currently being debated at EU level, German policymakers fear the EU regulation might water down the NetzDG provisions.

“For the EPP and the CDU/CSU parliamentary group, it has been clear since the beginning of the negotiations that the regulations of the Digital Services Act must not fall short of the level of protection of the German NetzDG under any circumstances,” Hansjörg Durz, a CDU/CSU MEP, told EURACTIV.

In some areas, the NetzDG contains “far more far-reaching obligations for platforms with regard to the removal of illegal content and accessibility for users than the previous draft of the DSA,” according to lawyer Josephine Ballon from the NGO HateAid.

Of particular note are the strict deadlines imposed by the NetzDG for the deletion of illegal content posted on online platforms.

Under the German law, obviously illegal content must be removed within 24 hours, while the timeframe for more ambiguous content is within a week. “In the DSA, such deadlines for deletions have not been provided for so far, but they would be urgently necessary,” said Ballon.

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Problems of ‘overblocking’

But the NetzDG’s very tight deadlines for deleting illegal hate postings are viewed critically by some at the EU level.

Patrick Breyer, rapporteur of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) rejects including deletion obligations in the DSA. This would make “global internet corporations like Facebook to be quick censors and judges of right and wrong”, Breyer told EURACTIV.

The NetzDG is not without controversy on home turf either.

German lawmaker Mario Brandenburg of the liberal Free Democratic Party, for example, criticised the “increased privatisation of law enforcement” and calls the NetzDG a “political aberration.”

Breyer said the parliamentary committee calls for “an ‘immediate’ review without a rigid time limit for all providers,” in order to prevent the use of error-prone upload filters.

Critics say that the tight deadlines for the deletion of illegal content could lead to “overblocking” – the unjustified deletion of lawful content. The advocates of tighter regulation, on the other hand, believe the fears of ‘overblocking’ are at least partially exaggerated.

According to HateAid’s lawyer, Ballon, such fears cannot be confirmed by the experiences with the NetzDG. On the contrary, there are indications that “underblocking continues to be common practice”, Ballon added.

Zimmermann, for his part, stated that there was “no empirical evidence” that ‘overblocking’ was a problem, particularly as the NetzDG also stipulates a rebuttal procedure to prevent “unjustified deletions”.

“It is therefore incomprehensible why the experiences that already exist in the member states are not also used at European level,” said Ballon.

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Fragmentation

From the German side, policymakers say that the NetzDG has pioneered European regulation to put a stop to hate and harassment on social media.

Durz described the NetzDG as a “blueprint” for the DSA, while Zimmermann said the European Commission had essentially “built on the German experience” in its proposals.

MEP Breyer on the other hand points out that national measures like the NetzDG are the main reason for the launch of the DSA, as fragmentation increases the need “to unify the regulations on digital services.”

Meanwhile, a Commission spokeswoman told EURACTIV that EU countries should now focus on getting the DSA off the ground as quickly as possible to prevent “fragmentation of the EU’s internal market”.

Furthermore, a source in the Commission warned of “uncoordinated measures” of members states to regulated digital services – like the NetzDG – which would not only “fuel legal uncertainty.” The source also told EURACTIV that such fragmentation would ultimately benefit the big online platforms since they could more easily afford the higher compliance costs in a fragmented European legal area than smaller companies.

FDP MP Katharina Willkomm also criticised the emergence of a national patchwork. “In no other field is a uniform European regulation as sensible as for the Internet, which in principle is borderless,” she said, pointing to the large platforms being “active across Europe or globally”.

SPD MP Zimmermann, however, stressed that the NetzDG and the DSA were not in competition with each other, but complementary. “After the DSA has been passed, we will see what changes are needed to the NetzDG and whether all regulations can be maintained as they are,” he added.

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[Edited by Luca Bertuzzi and Benjamin Fox]

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