The full text of this Article may be found here.
31 Fordham Intell. Prop. Media & Ent. L.J. 1084 (2021).
Article by Patrick Zurth*
hat can be done against discrimination, bullying, insults, and the spread of dangerous fake news on social media platforms? While platforms in the United States enjoy broad discretion on how to approach that issue, there are both legal and political debates regarding social media regulation. Germany, by contrast, advances the opposite approach: requiring social media providers to block or remove illegal content. The Netzwerkdurchsetzungsgesetz (“NetzDG,” “Network Enforcement Act,” the “Act”) of 2017 outlines a specific procedure for implementing such a claim. The Act is the first of its kind in the western democratic states. Other countries have invoked or discussed whether to follow the German example, which could make NetzDG a pioneer in its strategy of combating hate speech and fake news. This Article is intended to explain the background, mode of operation, and reception of the NetzDG. Furthermore, this Article will attempt to clear up misunderstandings and discuss current developments around this Act. A main purpose of this Article is to examine whether the Act is a suitable prototype for the United States Congress to introduce regarding platform liability and to determine which alternatives are available at hand. To that end, the Article evaluates the constitutional leeway for a regulation of social media. The Article concludes that Congress could establish principles and mechanisms similar to the NetzDG which, despite its room for improvement, is better than its reputation. Data and recent judgments indicate that the debate surrounding this system, however, was based on exaggerated assumptions and misunderstandings. Therefore, it is hopeful that the United States averts the defected discussion surrounding the NetzDG and draws positive and negative lessons from it.
* Dr. iur., LL.M. (Stanford). Postdoctoral Fellow at the Chair for Private Law and Intellectual Property Law with Information- and IT-Law (GRUR-chair) (Prof. Dr. Matthias Leistner, LL.M. (Cambridge)) at Ludwig Maximilian University of Munich, Germany. Thanks to Professor David Freeman Engstrom, Abhilasha Vij, Jasmin Hohmann, Shazana Rohr, and the editorial board of the Fordham Intellectual Property, Media and Entertainment Law Journal for helpful comments and assistance.