Intermediary Liability
In the beginning of this year the Act to Improve Enforcement of the Law in Social Netzworks (so called NetzDG) came into force in Germany. It applies a notice and takedown-obligation on big social network providers with the aim to fight against hate speech. Upon notification of content purportedly constituting hate speech on its social network, a provider has to decide whether the content falls under the NetzDG’s definition of hate speech and has to take it down within 7 days if it is unlawful, in case of manifestly unlawfulness even within 24h. Should the provider fail to respond to a notification in time, he faces high fines. (Further explained here).
The NetzDG is another, very recent and in terms of restriction of fundamental rights far reaching example of a law instrumentalising intermediaries for the enforcement of law on the internet. Intermediary liability is a concept that is applied worldwide. Power is vested unto the intermediaries to control whether the behaviour of users on the internet complies with the law and in case they find a violation to respond to it by i.a. blocking access or deleting content on the internet. This means that through the concept of intermediary liability capacity is vested on (typically) private actors to exercise executive powers of control and enforcement of laws that is originally in the hands of the state.
The transfer of state powers upon private entities is not an entirely new concept but exercised in analogue areas such as the use of private security services in trains. And the fundamental rights concerned may be sufficiently safeguarded as long as state judicial review of intermediary decisions is available for affected internet users (see as an example the Manila procedural principles). However, what the use of intermediaries does is create an intransparency and insecurity of how control is exercised and by whom. There is a risk that intermediaries are turned into puppets of the existing regime, as well as there is a danger of intermediaries extending their control (interesting article on power obstruction here).
This may not be the first issue with regard to the NetzDG in Germany, being bound to judicial review as well as the safeguards of European human rights law. The case may be different, however, with regard to the similar laws enacted by e.g. Russia.
