Germany Regulations and Policies
Germany is a federal republic with sixteen states, but legislation in counter-terrorism is within the exclusive competence of the federal parliament in Berlin. The country’s criminal law is influenced by its membership in the United Nations and the European Union. Relevant actors in counter-terrorism and cyber-security are the intelligence services, the police, the Federal Office for Information Security, and platforms for cooperation between several authorities. Terrorism is criminalized at the federal level by the Criminal Code, which is applicable to both offline and online crimes. Germany has some of the most stringent legislation of online terrorist content and hate speech in the world. The Network Enforcement Act (Netzwerkdurchsetzungsgesetz- NetzDG), Germany’s anti-hate speech regulation, has been effective since January 1, 2018. The Act mandates that social media networks that do not remove “obviously illegal” posts within 24 hours of being told of the material face fines of up to €5,000,000. The law is applicable to social media platforms with over 2 million users in Germany, notably Facebook, Twitter, and YouTube. It is also expected to affect platforms including Reddit, Tumblr, and the Russian social network site VK.
NetzDG has proven very divisive, with some experts hailing it as a success, while others criticizing it as a blow to free speech. The legal uncertainty and reliance on algorithms can lead social media companies to delete posts, even if they may be covered by the right to freedom of expression. Furthermore, the law does not direct social media companies how to remove the content, and at least Facebook appears to make “unlawful content” invisible to users with German IPs, instead of removing the content globally. This means that German users who access social media sites via a VPN can view all content invisible in Germany. In contrast, this is positive as it means that a national regulation cannot have extraterritorial effects.
According to an article published by Reporters Without Borders, Google declared that it had received 215,000 complaints under NetzDG against content on YouTube in the first half of 2018, of which it removed approximately 27%. Facebook received only 886 complaints within the same period, of which it deleted 21%, while Twitter received 264,818 complaints, of which it took action on 10.8%. As part of its policy to increase transparency, Google provides information on the volume of content that has been removed under the Network Enforcement Law for both its Youtube and Google+ platforms.
It is important to note that Google, Facebook, and Twitter first remove content based on their own community standards. The volume of content they remove themselves is much more significant than complaints received under NetzDG. Facebook alone has reportedly two “Deletion Centers” in Germany, with 1,200 staff dedicated solely to reviewing and removing unlawful content.
In Germany, every legal counter-terrorism effort relates to section 129a of the Criminal Code. The section establishes several offenses. First, “whosoever forms an organization whose aims or activities are directed at the commission of murder and other serious crimes” is a terrorist. Second, the participation as a member in such an organization is also considered as terrorism. Third, whosoever forms an organization whose aims or activities are directed at committing offenses listed in paragraph 2 with the “intent to seriously intimidate the population, to unlawfully coerce a public authority or an international organization through the use of force or the threat of the use of force, or to significantly impair or destroy the fundamental political, constitutional, economic or social structures of a state or an international organization”, is a terrorist. According to section 129b, the offenses mentioned above shall also apply to organizations abroad when certain criteria are met.
Furthermore, the German Criminal Code outlaws “incitement to hatred”, “dissemination of violent content” and “defamation of religions”. There is no official definition of cyber terrorism as the Criminal Code is applicable to both offline and online crimes. In order to facilitate the investigation and prosecution, Germany runs a terrorist database. According to paragraph 3 subsection b of the Counter-Terrorism File Law, information on websites related to individuals suspected of forming or participating in a terrorist organization as in section 129a of the Criminal Code must be stored in the anti-terrorist file.
The German law fulfills the requirements of the Security Council resolution 2178. The council expresses “concern over the increased use by terrorists and their supporters of communications technology for the purpose of radicalizing to terrorism, recruiting and inciting others to commit terrorist acts, including through the internet, and financing and facilitating the travel and subsequent activities of foreign terrorist fighters, and underlining the need for Member States to act cooperatively to prevent terrorists from exploiting technology, communications and resources to incite support for terrorist acts, while respecting human rights and fundamental freedoms and in compliance with other obligations under international law,…” (UNSC resolution 2178 of 2014, p. 2 & 3).
There are several relevant actors in the field. One of the most important is the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz); alongside the 16 respective State Offices which together are the German domestic intelligence services. The Joint Counter-Terrorism Center (Gemeinsames Terrorismusabwehrzentrum – GTAZ), set up in Berlin in the end of 2004, is not an independent authority but a cooperation and communication platform for 40 national authorities in the field of internal security. A prerequisite for their cooperation was the establishment of two separate working platforms, namely the Intelligence Information and Analysis Center (NIAS – located at the Federal Office for the Protection of the Constitution) and the Police Information and Analysis Center (PIAS, located at the Federal Criminal Police Office). Following the model of the GTAZ, the Joint Internet Centre (Gemeinsames Internetzentrum—GIZ) is a multi-agency effort to gather information on terrorist activities in cyberspace, in particular Islamist Terrorism. It brings together several German intelligence services and is led by the Federal Office for the Protection of the Constitution. Additionally, the Cyber Defense Center (Cyber-Abwehrzentrum) encourages cooperation between IT security authorities surrounding cyber issues, including cyber terrorism.