What is illegal offline is also illegal online: the German Network Enforcement Act 2017

Constitutional democracies traditionally entrust courts rather than administrative agencies with the regulation of speech. Proposals to involve bureaucrats in speech regulation are quickly dismissed as government censorship. However, with the massive proliferation of harmful speech on the Internet, the judicial system is less and less capable to enforce legal standards online. Against this backdrop, a debate has emerged on whether or not to authorize an administrative agency with the online enforcement of free speech principles as defined by constitutional law and interpreted by the courts. In 2017, the German legislator led this idea to fruition and enacted the “Network Enforcement Law”, which gives the federal bureaucracy the power to evaluate and assess the internal speech policies of major online platforms. This paper analyzes the Enforcement Act and asks whether the new law adequately distributes the responsibility for preventing harmful speech between three major stakeholders: intermediaries, the administration, and courts. While the German law has its weaknesses, the paper argues that its general approach is overall convincing.