Fierce Controversy Over Draft Hate Crime Legislation, New Surveillance Law In Germany

Just before the upcoming elections in September, the German government seems eager to push through legislation to rein in internet hate speech, fake news, and also legalise state hacks and police searches of computers and mobile phones against suspects of all kinds. Even at the United Nations and Organization for Security and Co-operation in Europe (OSCE) level the recent initiatives in Germany have resulted in some raised eyebrows. The draft hate speech law has also “made it to the alert list of the Council of Europe Platform to promote the protection of journalism.”

On 22 June, the German Parliament passed changes to the German penal code that will allow law enforcement to place spy software on the devices of suspects in an effort to circumvent encryption. Following the Snowden revelations, the use of encryption has risen, resulting in law enforcement complaining about the risk of going dark. With the legalised state hacks that use software vulnerabilities kept secret, law enforcement now hopes to get on top of that, but overwhelmingly legal experts have spoken out against the new legislation, declaring it in clear violation of judgements of the German Constitutional Court.

The Court had developed the “right to informational self-determination” from traditional rights of privacy in 1983. Earlier attempts to introduce state hacking tools were ruled illegal by the Court. A new version of the Federal Police (BKA) law introducing online trojans was passed last year and once again is before the Constitutional Court. Former Minister of Justice Sabine Leutheusser-Schnarrenberger is part of a group of liberal politicians preparing a case against the BKA legislation. She confirmed to Intellectual Property Watch that together with the Liberal Party she will also sue against the newest penal law changes passed last week.

Council of Europe Commissioner for Human Rights Nils Muižnieks, in a reaction to Intellectual Property Watch, wrote that he is following the debate and will consider if there is a need to follow up on his report on the German surveillance agencies published in 2015. That report called for better oversight of surveillance in Germany.

Social Media Platforms to Take Down “Obviously Illegal” Content

Another piece of legislation under discussion drew attention of the UN Special Rapporteur for Freedom of Expressions, David Kaye. Kaye in a letter expressed his concerns over the draft bill and asked the German government “to ensure its compliance with international human rights law.”

The Council of Europe secretary general also warned about the risk of censorship to which the law could lead. “I share his concern,” Muižnieks stated, as well as the concerns by Kaye, adding, “member states should not rely on private companies that control the internet and the wider digital environment to impose the restrictions that are in violation of the states’ human rights obligations.”

Industry representatives, academic experts and the German data protection official’s office in a hearing of the Justice Committee of the German Parliament last week in Berlin recommended to delay the controversial legislation, describing it as “anecdotally motivated,” technically poor and a dangerous push to overblocking on the net.

The draft law (called the “NetzwerkDurchsetzungsgesetz”) targets social media providers and obliges them to take down what they judge to be “obviously illegal” content within 24 hours after being notified. For other illegal content they can take seven days. Systematic deficiencies in the takedown systems or the provision of regular reports on how they handled the requests are to be fined with up to 5 million euros.

Problems listed during the public hearing in Berlin last week include the difficulty for private operators to decide what is “obviously illegal” content. A big part of the 24 statutory offenses the social media providers have to make judgments about are in fact difficult to judge as different rights, notably freedom of speech, have to be balanced, said Bernd Holznagel, director of the Institute of Information, Communication and Media law at the University of Muenster. It is highly dependent on context, if somebody had to tolerate humiliations in conversations on the internet, he argued.

The statutory offenses in the bill list dissemination of propaganda of unconstitutional organisations, defamation of the president, encouraging serious violent offense endangering the state, treasonous forgery, incitement to crime, distribution of pornographic performances and much more. Given the choice of risking high fines or taking down content social media providers could tend toward overblocking, Reporters without Borders warned. More and more journalistic content was blocked, the organisation wrote in a release for the hearing.

As with the new penal law the government wants to fast-track the controversial bill.

 

Image Credits: Achim Melde