Several HBI experts from the fields of media law, protection of minors from harmful media, platform regulation and internet research have given their opinion on a key issue paper of the Federal Ministry of Justice (BMJ) on a law concerning digital violence. In this paper, they assess the three measures provided for by the law to improve the enforcement of legal claims of those affected: (1) extended information claims, (2) temporary account blocking claims, (3) better responsiveness of providers. The authors state that three instruments are confronted with legal concerns and questions of effectiveness in practice.
You can download the expert opinion here (pdf, in German)
To the key issue paper of the BMJ
Authors: Sünje Andresen, Stephan Dreyer, Matthias C. Kettemann, Tobias Mast, Katharina Mosene, Jan Rau, Valerie Rhein, Wolfgang Schulz, Neda Wysocki.
Summary
It has become particularly clear how close the connection is between the breadth of the concept of injury or violence used and the danger of chilling effects for public communication. The broader and vaguer the scope of application, the more unclear the possibility of a legal assessment of one's own actions, and the more likely communicators are to refrain from making (even permissible) statements. The planned inclusion of legal persons as claimants threatens to reinforce existing power imbalances with a broad concept of violence, especially regarding the possibility of wanting to remove disagreeable statements and even factual criticism from the network from a company's point of view. It seems advisable to limit the concept of violence to violations of rights by natural persons.
Overall, in view of the legal, effectiveness and practicability problems, the question arises as to whether it makes sense to transfer the enforcement of rights of persons affected to civil law. In the case of multiple and serious violations of personality rights, the central issue is the state's guarantee mandate to create a legal system that can protect individuals from violations of personality rights. The envisaged concept of primarily providing the affected person with means of enforcing rights in the case of violations of personality rights appears suboptimal in any case in view of the social and state interests of non-toxic public communication that are also affected and that invite the communicative participation of all citizens.
In view of the acts of infringement, it seems appropriate to discuss the possibilities of regulatory law for guaranteeing protection against violations of personality rights. In view of the supra-individual, communal interests that are also affected, this can also be a topic of communications regulation. A media supervisory law approach against significant violations of personality rights could at least reduce some of the problems identified.
However, it must ultimately be stated that any state approach scales poorly in view of the multitude of violations committed. Dealing with individual cases is personnel-intensive, costly, and time-consuming. Alternative governance approaches, which instead of individual official or judicial bodies make forms of network responsibility with procedural specifications regarding the procedural arrangements and decision-making standards to be observed, can possibly solve the problem of scalability better. Platforms have differentiated governance instruments for information flows and can record campaign-like communication acts well and effectively control or prevent them, for example, where corresponding sensitisation has taken place in exchange with politics and science. Here, the Digital Services Act shows that there are also forms of hybrid governance and regulated self-regulation, in which legal regulations make specifications for the design of procedures on the part of the platform providers, which they then implement in scalable, lived moderation and blocking practices. The key issue paper still sticks to rather classic regulatory approaches here.
Hamburg, 31 May 2023
