Over the course of 2015 and 2016, Germany had accepted around one million refugees, most from the Middle East. A right-wing anti-migrant backlash ensued, leading to a dramatic increase in crimes often committed by Germans who had no prior affiliation with extremist right-wing groups. On social media, hate speech proliferated, targeting both refugees and government officials who were deemed responsible for Germany’s open immigration policy. At the same time, the online propaganda and recruitment efforts of the so-called “Islamic State” (IS) were at their peak and several IS-claimed terrorist attacks were committed within the European Union and Germany.
In 2016 and 2017, the German federal government initiated an investigation into online activities that violated Article 130 (incitement to hatred and Holocaust denial) and Article 86a (use of symbols from unconstitutional organizations) of the penal code, and violations against the Youth Protection Act. The organization mandated with the investigation reported 200 pieces of content per tested social media company (SMC). Facebook removed 39%, YouTube 90%, and Twitter 1%. Looking solely at content removed within 24 hours of being flagged, the rates fell to 31% for Facebook, 82% for YouTube, and 0% for Twitter.1
Realizing that social media failed their own community standards and did not police their networks effectively with respect to illegal activities, Germany’s Network Enforcement Act, or NetzDG law, was introduced on May 16, 2017, and passed several weeks later. The short period for deliberation in the Bundestag was criticized heavily. Federal elections were held in September that year so it appeared that for the governing coalition of the Christian Democrats (CDU) and Social Democrats (SPD), speed was more relevant than deliberation. The law was passed virtually unanimously among the CDU and SPD. The Free Democrats (FDP) and the party “The Left” voted against, the Greens abstained.
Prior to the drafting of the law, there were attempts by the Federal Ministry of Justice and Consumer Protection to discuss with and convince the major SMCs to substantially increase their self-policing efforts through “regulated self-regulation.”
NetzDG came into binding effect in January 2018. Now, 16 months later, some findings, conclusions, and lessons can be drawn. Germany’s NetzDG represents a relevant test case for combatting hate and terrorist propaganda on the internet by law.
Before going into the details of the NetzDG, one of the key questions often raised in this context is: Why is it not a priority for SMCs like Facebook/Instagram, Twitter, Google/YouTube, Pinterest or Soundcloud to proactively and robustly police their platforms regarding all content that is in violation of their own community standards or the laws of the countries they do business in?
The mission statements of major SMCs highlight that they aim at “making the world more open and connected,” to “give everyone the power to create and share ideas and information instantly without barriers,” and to “organize the world's information and make it universally accessible and useful.” Since most SMCs are for-profit enterprises, driven and measured by their ability to increase profits and the value of the company, conflicts between different interests and objectives on how to prioritize resources and investments are inevitable.
For SMCs to justify the allocation of significant resources towards a more effective self-policing (compliance) regime, the incentives of doing so, or the costs of not doing so, must be of higher priority than investing those resources into the growth of the core business. In most cases this means selling community member data to the highest eligible bidder.
Incentives to allocate additional resources towards effective self-policing might include:
- avoiding legislation that might interfere with the business model at large
- preventing reputational damage due to unfavorable media reporting
- reducing the amount of lawsuits and possible fines
The concept of “regulated self-regulation,” which appears to work with different industries, seems not to have led to the desired results for many governments and policymakers on the EU level and with EU member states. NetzDG and recent regulation on the European Union level is evidence of this.