JUSTICE - No. 66

37 Spring 2021 III. Evaluation: Success and Problems of the NetzDG Even before it was passed, the NetzDG was criticized primarily by social network operators. They argued that it would impose on them a large part of what they believe is the state’s responsibility, as well as an unjustified financial burden. 15 Other parties also did not see the NetzDG as an all-round success, as they felt it did not go far enough and, in particular, that it was still difficult to prosecute reported posts via “regular” criminal proceedings due to the anonymity of the internet. The legislators themselves also felt that the NetzDG would not be able to achieve the relevant goals under all circumstances. For this reason, the explanatory memorandum attached to the 2017 law stipulated that an evaluation report be prepared three years after the NetzDG came into force. This was to examine, among other things,“whether and to what extent the intended effects on social networks with regard to their handling of complaints about hate crime and other punishable content have been achieved.” 16 This evaluation report was published on September 9, 2020. In it, the NetzDG is attributed a clear share of the social networks' improved handling of user complaints. 17 The number of complaints filed confirms this positive evaluation. In the second half of 2020, 811,469 complaints were filed on Twitter under the NetzDG. On YouTube, there were 323,792 NetzDG complaints, and on TikTok 246,434. 18 It is also noteworthy that Facebook was fined two million Euros in 2019 for violations of the NetzDG. 19 The NetzDG is also considered quite successful in press articles highlighting the fact that users must be given the possibility to report posts and that the number of complaints submitted, as well as deletions, can now publicly be traced via the publications of the platforms. Although reservations exist with respect to some facets of the law, 20 the numbers in the semi-annual reports demonstrate the positive impact of the law. 21 Emphasis is placed on the fact that a crowding-out effect can be observed. The large social networks would become increasingly unattractive for agitators due to the simplified user reporting procedures, as their posts and user accounts would be deleted relatively quickly. Public prosecutor Christoph Hebbecker of the Central Office for Cybercrime (ZAC) also sees this effect: “We don't have any statistics on this, but our impression is that the obvious cases of criminal agitation are deleted more quickly on the networks and are correspondingly less frequent.” 22 However, this positive displacement effect also has a negative aspect. The incitement does not disappear completely by being reported on the major platforms. Instead, it shifts to smaller platforms that do not fall within the scope of the NetzDG due to their low user numbers. These“fringe networks”enjoy great popularity, especially in relevant right-wing extremist circles, as even clearly illegal posts are very rarely deleted there, if at all. Examples of these“fringe networks“ are foremost the Russian network VK and the messenger service Telegram. 23 Despite these indications of a crowding-out or churning trend, the German government continues to believe that the best approach to combating incitement 15. Cf. Spiegel/Heymann, K OMMUNIKATION & R ECHT , Ed. 5/2020, p. 344. 16. Supra note 13, p. 16. 17. Report of the Federal Government on the Evaluation of the Act to Improve Law Enforcement in Social Networks, published on Sept. 9. 2020, p. 9, available at https://www. bmjv.de/SharedDocs/Downloads/DE/News/PM/090920_ Evaluierungsbericht_NetzDG.html 18. Tomas Rudl, “Wie Facebook das NetzDG aushöhlt,“ N ETZPOLITIK , Feb. 26, 2021, available at https://netzpolitik. org/2021/blackbox-wie-facebook-das-netzdg-aushoehlt 19. Alexander Fanta and Markus Beckedahl, “Wegen Intransparenz bei rechtswidrigen Inhalten: Facebook soll zwei Millionen Euro Bußgeld zahlen,“ N ETZPOLITIK , July 2, 2019, available at https://netzpolitik.org/2019/wegen- intransparenz-bei-rechtswidrigen-inhalten-facebook- soll-zwei-millionen-euro-bussgeld-zahlen 20. Christina Brause,“Das Anti-Hass-Gesetz fällt im Stresstest durch,“ WELT , March 2, 2020, available at https://www. welt.de/politik/deutschland/article206256861/NetzDG- Das-Anti-Hass-Gesetz-faellt-im-Stresstest-durch.html 21. Dr. Christoph Buchert,“Ein Gewinn für den Rechtsstaat,“ L EGAL T RIBUNE O NLINE , Oct. 26, 2019, available at https:// www.lto.de/recht/hintergruende/h/pro-contra-netzdg- ein-gewinn-fuer-den-rechtsstaat. Translated quote:“Two years after the law came into force, the assessment of the NetzDG is mixed.The most important thing, however, is that the law is working. Based on the figures in the annual reports, it can be seen that operators are largely complying with their obligations to check and delete data.” 22. Timo Steppat, “Die Hetze verlagert sich,“ F RANKFURTER A LLGEMEINE Z EITUNG , Feb. 4, 2021, available at https://www. faz.net/aktuell/politik/inland/viele-netzwerke- kooperieren-beim-kampf-gegen-hetze-17181368.html 23. Supra note 22.

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