JUSTICE - No. 66

38 No. 66 JUSTICE to hatred on the internet lies with the major networks. It focused on this aspect in its reform of the NetzDG. The main problem with the previous unamended NetzDG was the lack of involvement of the authorities who, as law enforcement agencies, often had no knowledge of the deleted, and in some cases obviously illegal, content of the reported posts. Therefore, although the respective offensive posts had been deleted by the social networks after the report, there was no criminal consequence for the perpetrator. 24 This gap is to be closed by a revision of the NetzDG. Why is there a need for further intervention if deleting illegal comments is already effectively achieved? The answer is prevention: If the users concerned have no repercussions to fear other than the deletion of the posts or their user accounts, they are free to create new accounts that continue to spread new and illegal posts. There is no deterrence effect and the “clean-up work” in the form of repeatedly deleting the posts becomes a Sisyphean task, since new posts are constantly appearing, possibly written by the same perpetrator. Effective prosecution should therefore not only combat the symptoms, but also the root of the problem. IV. Further Need for Action and New NetzDG In order to understand the current state of controversy regarding the NetzDG in Germany, it is necessary to know what distinguishes the new NetzDG (2021) from the old NetzDG (2017); where does the legislative process currently stand, and what is criticized about the new NetzDG (2021). 1. Content of the New NetzDG Even after the “old” NetzDG came into force, law enforcement authorities depended on the voluntary cooperation of social networks to prosecute unlawful postings. Provided that the authorities became aware of a corresponding request, they could send a request for legal assistance to the operators of the social networks. Since the operators were not legally obligated to cooperate, the success of the request depended on the companies' willingness to help. 25 The legislature intends to address this grievance and the resulting widespread perception of the internet as a“legal vacuum” by passing a bundle of laws under the name “Act to Combat Right-Wing Extremism and Hate Crime”; this bundle includes the modification of the previous NetzDG. 26 The core of the amendment to the NetzDG refers to the so-called reporting obligation, which should enable a more intensive and effective fight against right- wing extremism and hate crime on the internet. This reporting obligation imposes on the operators of social networks the duty to report certain criminal content to the Federal Criminal Police Office (BKA), so that it can subsequently act against the authors of the posts. The reporting obligation is flanked by the inventory data disclosure, which is intended to enable the authorities to query the user data stored with the operators (IP address, clear name, etc.). 27 In this way, offenders are to be stripped of their anonymity. 2. Current Status of the New NetzDG The inventory data inquiry is precisely the reason why the new NetzDG has not yet come into force. Actually, the corresponding legislative package was already passed in parliament on June 18, 2020 (BT-Drucksache 19/17741) and also confirmed by the state representation in the Bundesrat on July 3, 2020 (BR-Drucksache 339/20). For the law to come into force in Germany, however, it needs to be ratified by the Federal President and then promulgated in the Federal Law Gazette. In this case, before the Act was ratified by the Federal President, a decision of the Federal Constitutional Court was published. 28 Although the Federal Constitutional Court did not rule on the new NetzDG but on the compatibility of a specific federal law (the “TKG” - GermanTelecommunications Act 29 ) with the Constitution, the ruling was nevertheless significant for the legislative project. The Federal President sees parallels between the TKG and the new NetzDG, and therefore did not ratify the new NetzDG and did not sign it. The reason for this was that the standards declared 24. BT-Drucksache 19/17741, p. 3 (German Parliament Document, Records and reports on the activities of the German Parliament). 25. Supra note 22. 26. Supra note 24, p. 2. 27. Ibid . 28. BVerfG (Federal Constitutional Court), ruling of May 27, 2020, file ref.: 1 BvR 1873/13, 1 BvR 2618/13 - Bestandsdatenauskunft II. 29. “Telekommunikationsgesetz vom 22. Juni 2004 (BGBl. I S. 1190), das zuletzt durch Artikel 319 der Verordnung vom 19. Juni 2020 (BGBl. I S. 1328) geändert worden ist,” available at https://www.gesetze-im-internet.de/tkg_2004/ BJNR119000004.html