Declaration on Freedom of Expression
In response to the adoption of the
Network Enforcement Law („Netzwerkdurchsetzungsgesetz”)
by the Federal Cabinet on April 5, 2017:
Freedom of expression has an essential and indispensable role in a society shaped by democratic values. The basic right to free expression is protected under the freedom of communication clause and under the freedoms granted to the press and broadcasters. The right to free expression finds its limits only where the rights and dignity of others are violated. The right to free expression and its restrictions, apply online as well as offline.
Recently, the permissible scope of freedom of expression has been highly debated due to a number of incidents, which claim that false statements and hate speech often shape public discourse. To cope with this phenomenon, the Federal Cabinet has presented the Network Enforcement Law (NetzDG), which is set for adoption by the German Bundestag in the summer. Against this background, the signatories of this declaration wish to express their support for the following three principles:
- It is important to be able to effectively deal with criminal or illegal content. With all the necessary and proportionate resources at the disposal of the state. It is the responsibility of the judiciary to decide what is unlawful or punishable and what is not. The enforcement of such decisions must not fail due to a lack of provision of justice. Internet service providers play an important role in combating illegal content by deleting or blocking it. However, they should not be entrusted with the governmental task of making decisions on the legality of content.
- Freedom of expression is a precious asset. It goes so far as to make a society withstand content that is difficult to bear, but it operates within the framework of the legal regulation. Democracy feeds on a plurality of views.
- Any legislation should ensure that a balance is struck between constitutionally protected interests. Free expression and free information for all must not be affected by the existence of unlawful or criminal content being dealt with. This is particularly the case for content, in which illegality cannot be determined quickly enough, certain enough or at all to begin with. "When in doubt delete / block" should not be a fallback option, since such an approach would have catastrophic consequences on the freedom of expression.
The Network Enforcement Law adopted by the Cabinet questions these principles by transferring mainly state tasks of enforcement to private companies. The threat of high fines in connection with short reaction times increases the risk that platform operators will delete or block such contents, which fall in a gray area – to the detriment of free expression. The examination of the illegality of content also requires careful consideration of context and the intent of expression. This task must continue to be carried out by the court system.
We believe that an overall political strategy is necessary to curb the proliferation of hate speech and deliberate fake news on the Internet. We recognise that there is a need for action; however, the draft law does not meet the requirement to adequately protect the freedom of expression. On the contrary – it jeopardises the core principles of free expression. Therefore, we call for a cross-societal approach which intensifies criminal prosecution and law enforcement while also strengthening counter speech, fostering media literacy, and preserving a regulatory framework that respects freedom of expression in the deletion or blocking of unlawful content.
Signatories of this declaration are
Further signatories are
- Dr. Ulf Buermeyer, LL.M., Chairman of GFF (Gesellschaft für Freiheitsrechte / Society for Civil Rights)
- Dr. Frederik Ferreau, Research assistant, University of Cologne
- Prof. Dr Hubertus Gersdorf, Jurist
- Joerg Heidrich, Attorney
- Prof. Dr. Jeanette Hofmann, Political scientist
- Prof. Dr. Thomas Hoeren, Jurist
- Prof. Niko Härting, Attorney
- Jan Mönikes, Attorney
- Prof. Dr. Dr. h.c. Ingolf Pernice, Jurist
- Stephan Schmidt, Attorney