Liability protection of social media service providers – The German NEA and EU law in transformation

Abstract

The topic of the liability of social media companies for hate speech on their platforms has become an ever more relevant subject since the early 2010's. While social media was in its early days met with a lot of optimism for its potential for democracy and civil society, the pendulum would radically swing from optimism to strong pessimism with some of the more tumultuous political events of the 2010’s in the EU and the US, as social media services were increasingly seen as tools to spread hate speech and misinformation. There has therefore been since the mid 2010's on an EU level as well as among several Member States an increased drive to put by legislative means more pressure on social media companies to improve their review processes for potentially illegal hate speech on their platforms.

Intermediary liability of social media companies has in the EU has its legal framework in the e-Commerce Directive, which gives internet intermediaries a relatively strong protection. However, the e-Commerce Directive has over time received criticism for being outdated, since it was introduced before emergence of social media platforms as we know them today. Germany in 2017 decided to introduce the so-called Network Enforcement Act (NEA), which brought into force much stricter liability for social media companies for illegal hate speech on their platforms, most notably by providing strict timeframes for when illegal content should be removed as well as significant penalties for non-compliance. The NEA met criticism for being in breach with the e-Commerce Directive as well as being problematic from the viewpoint of freedom of expression. However, the EU's novel Digital Services Act (DSA) is about to introduce rules regarding internet intermediary liability which seem to be more in line with the NEA than the e-Commerce Directive.

In this thesis it is reviewed how the NEA introduced its own solution to the question of the intermediary liability of social media companies within the EU. After this it is evaluated whether there are clashes between the NEA and existing EU law as well as how the DSA potentially solves these issues. It is found that the NEA introduced a type of strict liability for social media service providers that cannot be derived from existing EU legislation or case law, and that there are clear contradictions between the e-Commerce Directive and the NEA. However, the new DSA seems to strongly rule in favor of the NEA by introducing similar strict liability for social media companies as already exist in the NEA. It would therefore seem that with the DSA the EU has made a very conscious political decision to introduce a new era of stricter social media intermediary liability, at the expense of freedom of expression, the implications of which are discussed in the conclusion of the thesis.