February 1, 2022 is set to be a special day in German judicial history. From this date on, hatred and agitation on the Internet should finally be combated quickly, hard and effectively. Social networks will then no longer have to erase the flood of death threats and other crimes as before – at least in theory. Instead, they report to the Federal Criminal Police Office (BKA), which is supposed to ensure nationwide criminal prosecution. An obligation to notify – that has never existed in German law. “That will lead to quick and consistent investigations against Hetzer – before their words become deeds,” writes the Ministry of Justice on its website.
The federal government has been working on the plan for a long time; after the murder of CDU politician Walter Lübcke in July 2019, it presented it as a central point of its “package of measures” against right-wing extremism and right-wing terrorism. As early as June 2020, the Bundestag passed the notification requirement for Facebook, Twitter and Co., unfortunately the matter then stalled for the time being. It was not until the Federal President Frank-Walter Steinmeier made politicians aware that the law had a serious shortcoming. The case law of the Federal Constitutional Court did not take the makers into account. He couldn’t sign it like that. Repair work was carried out in a hurry. One of the most important projects of the last legislative period was delayed.
And it looks like this could not be the last delay. It is now even questionable whether this long-announced project can even start in 2022.
It is not known when the court will decide
The reason for this are legal complaints from Facebook and Google. The companies have submitted applications for temporary injunctions against the forwarding of data to the BKA as provided for in Paragraphs 3a and 3b of the Network Enforcement Act. The story is not new, the applications to the administrative court in Cologne date back to July. But the court has not yet decided. And when it will do this is unknown. Time is running out. When asked, the court only declares that “it has not yet been determined” when the decision will be made.
Nobody in the federal government would say this out loud, but as soon as the name of the administrative court in Cologne is mentioned, high-ranking officials grimace. The court has the reputation of needing a lot of time even in urgent matters, as it was, for example, in the case of the AfD. Most recently, there was a real scandal because the court claimed that the federal government was responsible for ensuring that confidential information about the protection of the constitution and the AfD ended up in public. The observation of the party has since been suspended nationwide.
Google and Facebook have complained that others could join
In terms of content, Google and Facebook argue that they are in favor of law enforcement. But to forward data in a “mass procedure” to a police authority and to put the investigation of possible criminal liability in the hands of the company, is disproportionate. In addition, there is concern that autocratic and dictatorial states would immediately use German law as a blueprint – and that such obligations would also be enacted.
In industry circles it is said that other social networks could join the lawsuits. When asked, TikTok explains: “We share the main concerns that other companies have expressed and are currently intensively investigating the matter.” Apparently, many of the large social networks have not even met the personnel and technical requirements to send data to the BKA from February 1st. Because no matter how and whenever the administrative court in Cologne decides, there is at least one appellate instance in urgent proceedings for the federal government as well as for Facebook and Google. The matter will still drag on.
It is noticeable that the Federal Ministry of Justice has declared of its own accord that Google and Facebook will not be forced to do anything for the duration of this procedure. Corresponding “standstill commitments” in proceedings 6 L 1277/21 and 6 L 1354/21 went to the court in August, confirms the ministry. This would not be legally necessary. The administrative court did not ask the government to stop taking action against online hate speech. The lawsuits from Google and Facebook have no “suspensive effect,” confirmed a court spokeswoman.
200 BKA officers are waiting for it to start
Meanwhile, the BKA is in the starting blocks, around 200 officers from a newly established “Central Reporting Office for Criminal Content on the Internet” are waiting for it to start. “It cannot be that so many people will twiddle their thumbs there from February 1st,” criticizes the chief lawyer of the “Hate Aid” organization, Josephine Ballon. “You created jobs, you bought technology, and now nothing happens.” Unfortunately, the federal government is also to blame for this. You have made it too easy for Facebook and Google to sue. Because some things in the new law simply violate data protection.
There is hardly anyone in the new federal government who would like to speak about the legal dispute. The fight against hatred and agitation is one of the most urgent topics these days, there is huge concern that the fantasies of violence that are being expressed more and more openly on the Internet spill onto the streets. The focus of the current debate is the messenger service Telegram, in which large groups of radicals gather.
As early as April, the Federal Office of Justice therefore tried to send the Telegram operator the documents for an initiated fine procedure at its headquarters in Dubai. Nothing happened. In the meantime, diplomatic pressure and an EU initiative are being considered – but some in the German government self-critically admit that this idea could have come up earlier. It is like so often: it takes forever.