[Special Feature: Changing Media and Journalism] News and Legal Regulation in the Web Era: A Case Study from Germany

Against the backdrop of social globalization and the rapid spread of Social Networking Services (SNS), "media distrust" has become a global issue.

However, Germany, which the author focuses on for comparative law research, has a relatively high level of trust in mass media within Europe, and the use of the internet as a means of obtaining news is also low. Using several reliable data points as clues, Kaori Hayashi, a professor at the University of Tokyo, points out that "In Germany, traditional media such as newspapers, radio, and television are still steadily used as core information sources today" (Kaori Hayashi, "Media Distrust," Iwanami Shoten, 2017). Behind this is the social situation in Germany where the so-called "liberal consensus"—characterized by overcoming the Nazi past, the desire for a free society, and respect for liberal-left thought—has spread widely among general citizens since the 1970s.

Nevertheless, even in such a Germany, movements of media distrust have been seen for several years, and illegal information transmitted through SNS, especially hate speech against refugees, has become a social problem. Specifically, the xenophobic right-wing citizen movement "Patriotic Europeans Against the Islamisation of the Occident" (commonly known as PEGIDA), which has been gaining momentum since late 2014, and the political party "Alternative for Germany" (abbreviated as AfD), which criticizes refugee policy and won seats for the first time in the September 2017 federal election, have used the term "Lügenpresse" (lying press) at demonstrations and rallies to criticize liberal media reporting as biased. However, the term "Lügenpresse" has a historical background in Germany, having come into use in the 19th century when doubting public opinion manipulation by print media, and was also used by the Nazis to criticize newspapers. For this reason, some point out that general citizens have become more cautious about using this term to take an unnecessarily hostile attitude toward the media.

In June 2017, the Bundestag (Federal Diet) passed the SNS Enforcement Act (which took effect on October 1 of the same year). This law is formally titled the "Act to Improve Law Enforcement on Social Networks," but in this article, it will be referred to as the SNS Enforcement Act. Because its primary target is Facebook, it is referred to in media reports as the "Facebook Act."

With the spread of SNS such as Facebook, YouTube, and Twitter, it became a problem in Germany that expressions prohibited by criminal law, such as hate speech and defamation, were being posted through these platforms without being deleted, without criminal responsibility being pursued, and remaining published. Unlike the United States and Japan, so-called hate speech is subject to punishment in Germany as the crime of incitement to hatred (Strafgesetzbuch Section 130, Paragraphs 1 and 2). The crime of incitement to hatred prohibits inciting hatred against a specific group or part of the population in a manner capable of disturbing the public peace. Furthermore, with the 1994 amendment to the criminal code, the so-called "Auschwitz Lie" also became subject to prohibition (Section 130, Paragraph 3), and with the 2005 amendment, the glorification or trivialization of Nazi violent and arbitrary rule was also prohibited (Section 130, Paragraph 4).

Among these, hate speech targeting refugees on SNS is seen as particularly problematic. Triggered by the acceptance of a large number of Syrian refugees in 2015, numerous instances of hate speech against refugees and those supporting them began to be posted on SNS, not only by PEGIDA activists but also by general citizens. There have been cases, such as Lutz Bachmann, the founder and former representative of PEGIDA, who was convicted of incitement to hatred for writing comments on Facebook that slandered refugees and incited hatred (fined 9,600 euros).

However, by the summer of 2016, the view was strengthening that there were human and material limits to investigating the numerous SNS posts as crimes, and that the voluntary efforts of SNS providers could not solve the problem. Furthermore, because the problem of so-called "fake news" also occurred during the U.S. presidential election that same year, it came to be considered necessary to take some kind of SNS measures in Germany as well.

Note that while the SNS Enforcement Act attracted international attention as a fake news regulation law, its main focus is on making providers delete illegal content posted on SNS, such as hate speech and defamation prohibited by criminal law. It is necessary to note that the false information that SNS providers must respond to under this bill is limited to certain false information whose publication has traditionally been prohibited as a crime by criminal law, and it does not newly prohibit the intentional distortion of facts in a general sense.

The SNS Enforcement Act requires SNS providers with more than 2 million registered users to respond to complaints filed by users regarding posts on SNS, to delete "manifestly unlawful content" within 24 hours and "unlawful content" within one week, and to submit and publish semi-annual reports on the system and operation of complaint handling. It also stipulates administrative fines for violations of these obligations. If an SNS provider fails to fulfill obligations such as submitting/publishing reports or establishing a complaint handling system, an administrative fine will be imposed as a regulatory offense (maximum amount is 50 million euros, approximately 6.5 billion yen). Supervision is conducted by the Federal Office of Justice (Bundesamt für Justiz). Along with the enactment of this law, the Telemedia Act was amended to add a system for disclosing sender information in cases of illegal infringement of personality rights via anonymity.

The SNS Enforcement Act was prepared in a short period of time with an eye toward the federal election to be held in September 2017. When the bill was published in the spring of the same year, harsh voices of criticism arose from various quarters, arguing that it would be difficult for SNS providers to judge the illegality of posts, that posts would be deleted more than necessary to avoid high fines, and that it would have a significant chilling effect on freedom of expression on SNS.

In response to such criticism, amendments were made to the bill during deliberations in the Bundestag. Specifically, in the case of posts where the judgment of illegality is difficult, SNS providers are now able to delegate the judgment of illegality to a self-regulatory body within one week of receiving a complaint. Provisions regarding the certification of self-regulatory bodies were also added to the SNS Enforcement Act. To receive certification as a self-regulatory body, it is necessary to ensure (1) independence and expertise, (2) prompt review within one week, (3) provisions regarding the scope and procedures of review, and (4) the establishment of a complaint reception desk.

The SNS Enforcement Act came into force on October 1, 2017. Since January 1, 2018, SNS providers have been under an obligation to respond to complaints about illegal content and to prepare and publish reports on those responses based on the SNS Enforcement Act. However, despite the fact that the SNS Enforcement Act is already in full operation, SNS providers have not yet established the aforementioned self-regulatory bodies. Politicians are calling on SNS providers to establish self-regulatory bodies, but SNS providers maintain the attitude that there are many unresolved issues to realize this and that it will be difficult to achieve unless a clearer concept is presented. It is reported that politicians and SNS providers are blaming each other for the failure of the SNS Enforcement Act to achieve its expected effects.

Additionally, Facebook had previously established a center for complaint handling in Germany in Berlin, but in the fall of 2017, it opened a second center in Essen. However, the complaint handling centers are not directly managed by Facebook but are operated by companies commissioned by Facebook.

The SNS Enforcement Act requires SNS providers to judge the illegality of posted content, but judging whether a certain expression is illegal or not is not easy even for a judge. This is also clear from constitutional precedents regarding the crime of incitement to hatred, which is the main target of the SNS Enforcement Act. Regarding the crime of incitement to hatred, the Federal Constitutional Court has functioned as a brake on excessive regulation of expression. Several times so far, guilty verdicts handed down by criminal courts have been overturned by the Federal Constitutional Court on the grounds of insufficient consideration for freedom of expression.

Markus Beckedahl, the founder and editor-in-chief of the famous German-language blog Netzpolitik.org, criticizes the SNS Enforcement Act for pushing the role that should originally be played by the judiciary onto SNS providers. Beckedahl says that for effective hate speech measures, rather than deleting posts, users who post illegal content should be investigated and brought to court. Furthermore, he points out that to fulfill the purpose of the SNS Enforcement Act, which is the "improvement of law enforcement on social networks," it is necessary to train judges who are well-versed in the internet and to enhance literacy education for internet users.

I would like to keep a close watch on the future operation of the SNS Enforcement Act to see if effective measures against illegal content can be taken while respecting freedom of expression on SNS.

*Affiliations and job titles are as of the time of writing.