Update: This post has been corrected as of August 1, 2020 to accurately reflect the details of the NetzDG.
For years, free speech and press freedoms have been under attack in Turkey. The country has the distinction of being the world’s largest jailer of journalists and has in recent years been cracking down on online speech. Now, a new law, passed by the Turkish Parliament on the 29th of July, introduces sweeping new powers and takes the country another giant step towards further censoring speech online. The law was ushered through parliament quickly and without allowing for opposition or stakeholder inputs and aims for complete control over social media platforms and the speech they host. The bill was introduced after a series of allegedly insulting tweets aimed at President Erdogan’s daughter and son-in-law and ostensibly aims to eradicate hate speech and harassment online. Turkish lawyer and Vice President of Ankara Bar Association IT, Technology & Law Council Gülşah Deniz-Atalar called the law "an attempt to initiate censorship to erase social memory on digital spaces."
Once ratified by President Erdogan, the law would mandate social media platforms with more than one million daily users to appoint a local representative in Turkey, which activists are concerned will enable the government to conduct even more censorship and surveillance. Failure to do so could result in advertisement bans, steep penalty fees, and, most troublingly, bandwidth reductions. Shockingly, the legislation introduces new powers for Courts to order Internet providers to throttle social media platforms’ bandwidth by up to 90%, practically blocking access to those sites. Local representatives would be tasked with responding to government requests to block or take down content. The law foresees that companies would be required to remove content that allegedly violates “personal rights” and the “privacy of personal life” within 48 hours of receiving a court order or face heavy fines. It also includes provisions that would require social media platforms to store users’ data locally, prompting fears that providers would be obliged to transmit those data to the authorities, which experts expect to aggravate the already rampant self-censorship of Turkish social media users.
While Turkey has a long history of Internet censorship, with several hundred thousand websites currently blocked, this new law would establish unprecedented control of speech online by the Turkish government. When introducing the new law, Turkish lawmakers explicitly referred to the controversial German NetzDG law and a similar initiative in France as a positive example.
Germany’s Network Enforcement Act, or NetzDG for short, claims to tackle “hate speech” and illegal content on social networks and passed into law in 2017 (and has been tightened twice since). Rushedly passed amidst vocal criticism from lawmakers, academia and civil experts, the law mandates social media platforms with two million users to name a local representative authorized to act as a focal point for law enforcement and receive content take down requests from public authorities. The law mandates social media companies with more than two million German users to remove or disable content that appears to be “manifestly illegal” within 24 hours of having been alerted of the content. The law has been heavily criticized in Germany and abroad, and experts have suggested that it interferes with the EU’s central Internet regulation, the e-Commerce Directive. Critics have also pointed out that the strict time window to remove content does not allow for a balanced legal analysis. NetzDG's conferral of policing powers to private companies does seem to lead to takedowns of innocuous posts, thereby undermining the freedom of expression, although to a lesser degree than originally feared.
A successful German export
Since its introduction, NetzDG has been a true Exportschlager, or export success, as it has inspired a number of similarly harmful laws in jurisdictions around the globe. A recent study reports that at least thirteen countries, including Venezuela, Australia, Russia, India, Kenya, the Philippines, and Malaysia have proposed or enacted laws based on the regulatory structure of NetzDG since it entered into force.
In Russia, a 2017 law encourages users to report allegedly “unlawful” content and requires social media platforms with more than two million users to take down the content in question as well as possible re-posts, which closely resembles the German law. Russia’s copy-pasting of Germany’s NetzDG confirmed critics' worst fears: that the law would serve as a model and legitimization for autocratic governments to censor online speech.
Recent Malaysian and Phillipinen laws aimed at tackling “fake news” and misinformation also explicitly refer to NetzDG. In both countries, NetzDG’s model of imposing steep fines (and in the case of the Philippines up to 20 years of imprisonment) on social media platforms for failing to remove content swiftly was applied.
In Venezuela, another 2017 law that expressly refers to NetzDG takes the logic of NetzDG one step further by imposing a six hour time window for failing to remove content considered to be “hate speech”. The Venezuelan law—which includes weak definitions and a very broad scope and was also legitimized by invoking the German initiative—is a potent and flexible tool for the country’s government to oppress dissidents.
Singapore is yet another country that got inspired by Germany’s NetzDG: In May 2019, the Protection from Online Falsehoods and Manipulation Bill was adopted, which empowers the government to order platforms to correct or disable content, accompanied with significant fines if the platform fails to comply. A government report preceding the introduction of the law explicitly references the German law.
Similarly to these examples, the recently adopted Turkish law shows clear parallels with the German approach: targeting platforms of a certain size, the law incentivizes platforms to implement takedown requests by stipulating significant fees, thereby turning platforms into the ultimate gatekeepers tasked with deciding on the legality of online speech. In important ways, the Turkish law goes way beyond NetzDG, as its scope does not only include social media platforms but also news sites. In combination with its exorbitant fines and the threat to block access to websites, the law enables the Turkish government to erase any dissent, criticism or resistance.
Even worse than NetzDG
But the fact that the Turkish law goes even beyond NetzDG highlights the danger of exporting Germany’s flawed law internationally. When Germany passed the law in 2017, states around the world were getting increasingly interested in regulating alleged and real online threats, ranging from hate speech to illegal content and cyberbullying. Already problematic in Germany, where it is embedded in a functioning legal system with appropriate checks and balances and equipped with safeguards absent from the laws it inspired, NetzDG has served to legitimize draconian censorship legislation across the globe. While it’s always bad if flawed laws are being copied elsewhere, this is particularly problematic in authoritarian states that have already pushed for and implemented severe censorship and restrictions on free speech and the freedom of the press. While the anti-free speech tendencies of countries like Turkey, Russia, Venezuela, Singapore and the Philippines long predate NetzDG, the German law surely provides legitimacy for them to further erode fundamental rights online.