Haut-Commissariat aux Droits de l'homme - Office of the High-Commissioner for Human Rights

Palais des Nations - 1211 Geneva 10, Switzerland

Mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

REFERENCE: OL DEU 1/2017

1 June 2017

Excerpts and formatting by Joachim Gruber

The draft bill defines "violating content" as content under Section of the German Criminal Code

• 86 (dissemination of propaganda material of unconstitutional organizations), 
• 86a (using symbols of unconstitutional organizations), 
• 89a (preparation of a serious violent offence endangering the state) 
• 90 (defamation of the president), 
• 90a (defamation of the state and its symbols), 
• 90b (anti-constitutional defamation of constitutional organs), 
• 91 (encouraging the commission of a serious violent offence endangering the state), 
• 100a (treasonous forgery), 
• 111 (public incitement to crime), 
• 126 (breach of the public peace by threatening to commit offences), 
• 129, 129a, 129b (forming criminal and terrorist organizations, domestically and abroad [einschl. 330a - schwere Gefährdung durch Freisetzen von Giften]), 
• 130 (incitement to hatred), 
• 131 (dissemination of depictions of violence), 
• 140 (rewarding and approving of offences), 
• 166 (defamation of religions, religious and ideological associations), 
• 184b (distribution, acquisition, and possession of child pornography), 
• 184d (distribution of pornographic performances by broadcasting, media services, or telecommunications services, [Bezug auf 184 Verbreitung  pornographischer Schriften, die Personen unter 18 Jahren zugänglich sind]), 
• 185, 186, 187 (insult and defamation), 
• 241 (causing the danger of criminal prosecution by informing on a person) and 
• 269 (forging of data intended to provide proof) .

...

Concerns:

• The question that arises relates to the way in which the bill seeks to achieve legitimate objectives, in particular the responsibilities it places upon private companies to regulate the exercise of freedom of expression, and whether the measures proposed by the bill would be lawful under international human rights law.
• A prohibition on the dissemination of information based on vague and ambiguous criteria, such as "insult" or "defamation" is incompatible with article 19 of the ICCPR. 
• The list of violations is broad, and includes violations that do not demand the same level of protection. 
• Moreover, many of the violations covered by the bill are highly dependent on context, context which platforms are in no position to assess. 
• In addition, the vague definition of "social network" raises questions as to the range of actors covered by the scope of the bill. According to the wording, it would cover all kinds of providers, including messaging services. At the same time, according to the explanatory notes to the bill, the law would not apply to email and messengers.

... The short deadlines, coupled with the afore-mentioned severe penalties, could lead social networks to over-regulate expression - in particular, to delete legitimate expression, not susceptible to restriction under human rights law, as a precaution to avoid penalties.

... Further, I am concerned with the lack of judicial oversight with respect to the responsibility placed upon private social networks to remove and delete content. 

• Any legislation restricting the right to freedom of expression and the right to privacy must be applied by a body which is independent of any political, commercial, or unwarranted influences in a manner that is neither arbitrary nor discriminatory (A/HRC/17/27). 
• The liability placed upon private companies to remove third party content absent a judicial oversight is not compatible with international human rights law.

I am also concerned at the provisions that mandate the storage and documentation of data concerning violative content and user information related to such content, especially since the judiciary can order that data be revealed. This could undermine the right individuals enjoy to anonymous expression (A/HRC/29/32). 

• Such restrictions on anonymity, in particular absent judicial oversight, facilitate State surveillance by simplifying the identification of individuals accessing or disseminating prohibited content. 
• By requiring complaints and measures to be documented and stored for an undisclosed amount of time, without providing further protection mechanisms against the misuse of such data, individuals become more vulnerable to State surveillance. 
• These provisions also allow for the collection and compilation of large amounts of data by the private sector, and place a significant burden and responsibility on corporate actors to protect the privacy and security of such data (A/HRC/23/40).

Finally, I am concerned at the possibility that users claiming a violation would be entitled to be given access to subscriber data without prior court approval. 

• The protection of anonymity, including protection against unlawful and arbitrary interference by state or non-state actors, plays a critical role in securing the right to freedom of opinion and expression. 
• The absence of a judicial warrant for the disclosure of individual information would represent a restriction that is neither targeted nor protecting of due process rights, and it would therefore not meet the strict test required for restrictions on privacy and expression (A/HRC/29/32).

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Version: 2..7.2017

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