Reports about the dissemination of fake news during the 2016 US election campaign fueled fears that the same could happen during the 2017 German federal elections. However, surveys conducted after the elections revealed that the fears were unfounded. Nonetheless, the public perceived that fake news had played a major role.
Germany has a number of civil and criminal law provisions that may be applicable to safeguard individuals or the public from fake news in social networks. In addition, in 2017, the Network Enforcement Act was passed with the specific aim of fighting fake news on social networks by improving the enforcement of the current laws. Social networks that do not remove clearly illegal content may be fined up to €50 million (about US$57.8 million). Germany also tries to ensure that citizens have access to accurate legal information by providing free access to legislation and court decisions online.
In December 2016, the Parliamentary Research Services of the German Bundestag (parliament) published a report on dealing with the dissemination of false information (“fake news”), including the current legal situation and reform proposals. The reason for the report was, among other things, a criminal complaint that the politician Renate Künast from the Green Party had filed against the authors of fake news published on Facebook. According to news reports, several Facebook pages had posted a picture of the politician with a quote in which she allegedly commented on the recent highly publicized murder of a student and the arrest of a suspect in Freiburg, stating that “[e]ven though the traumatized young refugee has killed, he should be helped nonetheless.” The picture named the newspaper Süddeutsche Zeitung as a source for the quote. The politician filed a criminal complaint against the operators of a right-wing Facebook page and against unknown persons. She criticized the fact that it took Facebook three days to delete the false information. Around the same time, reports about the dissemination of fake news regarding the 2016 US elections on Facebook and other social media platforms were published and fueled fears that the same could happen in the upcoming German federal elections in 2017.
A survey conducted in 2017 on behalf of the Media Authority of North Rhine-Westphalia (Landesanstalt für Medien Nordrhein-Westfalen, LfM) found that 59% of survey participants have encountered fake news on the internet. Among fourteen- to twenty-four-year-olds, the number was 77%. It is unclear whether false information has had any influence on the democratic process in Germany, for example, on elections. Whereas some studies have found that it has had an influence, others see the phenomenon more limited in nature. A survey conducted after the last federal elections in Germany found that there were not nearly as many fake news reports as expected and that no major piece of fake news had any impact on the results, but that there was a difference between that reality and the perception of most voters. In total, 61% of voters said that they were under the impression that a lot of fake news was distributed by the media. Among survey participants that were critical of the media and among younger people, the numbers were 75% and 72% respectively. Thirty percent of participants overall thought that fake news also had a major influence on the results. One possible explanation for this distortion found in the survey was the omnipresence of the topic “fake news” in media coverage of the US and the ambiguous meaning of the term “fake news.” In addition, most fake news in Germany is used by right-wing populist parties and supporters to advance their agendas and believed by their supporters when it correlates with their world views.
As a reaction to the spread of fake news, several initiatives have been started. In 2017, Germany passed the Network Enforcement Act (the so-called Facebook Act), which explicitly aims to combat hate speech and fake news in social networks. However, it should be noted that the Network Enforcement Act did not enter into force until October 1, 2017, after the Federal Elections of September 24, 2017. Likewise, the European Union (EU) in 2018 published an EU-wide voluntary Code of Practice on Disinformation and is planning to create an independent European network of fact-checkers to combat the spread of disinformation (fake news) online. The EU Code of Practice on Disinformation is the latest among a series of initiatives that the EU has started with regard to countering the spread of disinformation.
II. Legal Framework
In Germany, there is no general law that prohibits the creation and dissemination of fake news. However, depending on the facts of the case, there are a number of civil and criminal law provisions that may be applicable to safeguard individuals or the public from fake news in social networks. The aforementioned Network Enforcement Act did not create new duties to delete content and relies on the violation of enumerated criminal law norms.
A. Criminal Law
Under German criminal law, there are several provisions that prohibit the assertion or dissemination of personal information that is either false or cannot be proved to be true. A requirement is that the information is capable of defaming a person or of negatively affecting public opinion of the person. The crime of defamation is punishable with imprisonment not exceeding one year or a fine and, if it was committed publicly or through the dissemination of written materials, with imprisonment not exceeding two years or a fine. If the defamation was done intentionally, the term of imprisonment may not exceed two years or a fine; if it was committed publicly, in a meeting, or through the dissemination of written materials, it will be punished with imprisonment not exceeding five years or with a fine. If the defamation is directed towards a politician and it makes his or her public activities substantially more difficult, the punishment ranges from three months’ to five years’ imprisonment. Social networks are generally considered public places, except when information is posted in closed groups.
In addition to a criminal prosecution, a person who has been defamed may also sue for libel in civil court and request a preliminary injunction.
B. Media Law
The media law states that electronic information and communication services (“telemedia”) that provide journalistic content must conform to recognized journalistic standards, in particular when they completely or partially reproduce texts or visual contents of periodical print media. This means that news must be “verified by the provider prior to their [sic] transmission with the diligence appropriate to the circumstances concerning their content, source and truthfulness.” However, the law does not provide any consequences for a violation of journalistic standards. The only sanctions available to the German Press Council (Deutscher Presserat) are public reprimands. In addition, the Press Code (Pressekodex) enforced by the German Press Council is only applicable to people who have voluntarily agreed to be bound by it, which is typically not the case for social media platforms or persons posting content on social media platforms.
C. Host Provider Liability
Host providers are generally not liable for false information published by third parties on their platforms as long as they do not have actual knowledge of the rights violation.  However, once they are notified of the rights violation, they must delete the content immediately in order to avoid liability. The notification itself must be so specific and provide enough information that the host provider has a basis to qualify and verify the illegality of the posted information. However, in practice, host providers have regularly ignored notifications, which was one of the reasons for enacting the Network Enforcement Act, described below.
D. Network Enforcement Act
One of the objectives of the Network Enforcement Act, adopted in 2017, was to fight fake news in light of the events during the last US election campaign. The explanatory memorandum stated that
fighting fake news on social networks [is] a priority. To do so requires improvements in law enforcement on social networks in order to promptly remove objectively criminal content, such as incitement to hatred, abuse, defamation or content that could lead to a breach of the peace by misleading authorities into thinking a crime has been committed.
Surveys conducted on the deletion practices of social networks revealed that the voluntary commitments of social media platforms were insufficient. The government concluded that
[s]ince the current mechanisms and the voluntary measures agreed on by social networks are inadequate and given the significant problems in enforcing the current law, it is necessary to introduce rules to make social networks comply on pain of a fine in order to enable prompt, effective action against hate crime and other criminal content on the internet.
The Network Enforcement Act has been very controversial and has been criticized as unconstitutional, in particular with regard to free speech. Several political parties have submitted proposals to amend the law. However, none of the proposals have yet advanced very far.
1. Scope of Application
The Network Enforcement Act is only applicable to social media networks that have two million or more registered users in Germany. Social media networks are defined as “telemedia service providers that operate online platforms with the intent to make a profit and on which users can share content with other users or make that content publicly available.” The Act does not apply to platforms that post original journalistic content, or to email or messaging services.
2. Removal of Illegal Hosted Content
The Act obligates the covered social media networks to remove content that is “clearly illegal” within twenty-four hours after receiving a user complaint. If the illegality of the content is not obvious on its face, the social network has seven days to investigate and delete it. The seven-day deadline may be extended if additional facts are necessary to determine the truthfulness of the information or if the social network hires an outside agency to perform the vetting process (a recognized “Agency of Regulated Self-Regulation”).
In order to determine whether an act is “illegal,” the Network Enforcement Act refers to the Criminal Code, in particular to the provisions on dissemination of propaganda material or use of symbols of unconstitutional organizations, encouragement of the commission of a serious violent offense endangering the state, commission of treasonous forgery, public incitement to crime, incitement to hatred, and defamation, among others.
3. Complaint Mechanism and Biannual Reports
The social media platforms are obligated to offer their users an easy and transparent complaint mechanism that is constantly available. The decisions taken with regard to the complaint and the reasoning behind accepting or rejecting it must be communicated to the complainant and the affected user without undue delay.
Social media networks that receive more than one hundred complaints about illegal content in a calendar year are required to publish biannual reports in German on how they deal with these complaints. The report has to be published in the Federal Gazette and on the homepage of the social media network one month after the end of each half-year period. The report must be easily identifiable, immediately accessible, and permanently available. It must include information on the general efforts to prevent illegal actions on the platform, a description of the complaint procedure, the number of complaints received, the number and qualifications of employees who are handling the complaints, the network’s association memberships, the number of times an external party has been used to decide the illegality of the content, the number of complaints that led to the content being deleted, the time it took to delete the content, and measures that were taken to inform the complainant and the member who posted the deleted content.
A social media network that intentionally or negligently violates certain of the abovementioned obligations may be fined up to €50million (about US$57.8 million). If the Ministry of Justice wants to fine a company because it considers the content that was not deleted to be illegal, it must first obtain a court decision to this effect. The court decision is final and binding on the Ministry of Justice.
III. Access to Accurate Legal Information
The German federal and state governments as well as the courts provide free access to legal information online. The Federal Law Gazette as well as all the state law gazettes can be viewed online. The Federal Law Gazette is also available as a free app. The Federal Ministry of Justice publishes almost all laws online and provides English translations for selected laws. The same website provides links to administrative regulations of the Federal Ministries and to the jurisprudence of all federal courts. The Justice Portal of the Federation and the states provides links to the jurisprudence of all federal as well as state courts. It also provides access to various other online services, including links to all state legislation.
On the website of the German Bundestag (parliament), citizens can access parliamentary documentation for the Bundestag and the Bundesrat, the constitutional body through which the states participate in the legislative process, including draft laws and explanatory memoranda, verbatim records of parliamentary sessions, and answers to parliamentary requests, among others.
Prepared by Jenny Gesley
Foreign Law Specialist
 Wissenschaftliche Dienste [Parliamentary Research Services], Der Umgang mit Fake-News. Rechtslage und Reformansätze [Dealing with Fake News. Current Legal Situation and Reform Proposals], Report No. WD 10 - 3000 - 067/16 (Dec. 20, 2016), https://www.bundestag.de/blob/494418/4321d22920408 0dce488ebd0356b5db2/wd-10-067-16-pdf-data.pdf, archived at http://perma.cc/ZD2V-SSHP.
 Id. at 5; Künast stellt Strafanzeige wegen Falschnachricht auf Facebook [Künast Files Criminal Complaint for False News on Facebook], Frankfurter Allgemeine Zeitung (Dec. 10, 2016), https://www.faz.net/-gpg-8o93s, archived at http://perma.cc/M3KS-Z4B2.
 Künast stellt Strafanzeige wegen Falschnachricht auf Facebook, supra note 2.
 Wissenschaftliche Dienste, supra note 1, at 4.
 Forsa, Fake News 1 (May 2017), http://www.lfm-nrw.de/fileadmin/user_upload/Ergebnisbericht_ Fake_News.pdf, archived at http://perma.cc/4ZDL-6LMS.
 Id. at 2.
 Deutscher Bundestag: Drucksachen und Protokolle [BT-Drs.] 19/2224, at 1, http://dipbt.bundestag.de/ doc/btd/19/022/1902224.pdf, archived at http://perma.cc/Q4NX-BF2K.
 Id. at 1 (referencing the survey on behalf of the LfM, see supra note 7, and a study from 2017, see Simon Hegelich, Social Bots, Trolle, Fake-News [Social Bots, Trolls, Fake-News], in 62 Die Politische Meinung 543 (2017), https://www.kas.de/c/document_library/get_file?uuid=fb6dc26f-b391-995a-263b-cae7ed108176& groupId=252038, archived at http://perma.cc/7HTG-RFEG).
 Alexander Sängerlaub, Verzerrte Realitäten. Die Wahrnehmung von „Fake News“ im Schatten der USA und der Bundestagswahl [Distorted Realities. Perception of “Fake News“ Overshadowed by the USA and the Federal Elections] (Oct. 2017), https://www.stiftung-nv.de/sites/default/files/fake_ news_im_schatten_der_usa_und_der_bundestagswahl_0.pdf, archived at http://perma.cc/SRK7-DKPR.
 Id. at 6.
 Id. at 7.
 Id. at 11.
 Id. at 10.
 Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken [Netzwerksdurchsetzungsgesetz] [NetzDG] [Act to Improve the Enforcement of Rights on Social Networks] [Network Enforcement Act] [NetzDG], Sept. 1, 2017, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 3352, http://www.gesetze-im-internet.de/netzdg/NetzDG.pdf, archived at http://perma.cc/5HML-PQT5, unofficial English translation available at https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/NetzDG_engl.pdf;jsessionid=AD99C47B2608D12B014859D5FF786F29.2_cid289?__blob=publicationFile&v=2, archived at http://perma.cc/J86H-GTY4.
 Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken [Netzwerksdurchsetzungsgesetz] [NetzDG] [Act to Improve the Enforcement of Rights on Social Networks] [Network Enforcement Act] [NetzDG], Sept. 1, 2017, BGBl. I at 3352, art. 3, http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl117s3352.pdf, archived at http://perma.cc/5QZR-TYVD.
 EU Code of Practice on Disinformation (Sept. 2018), https://ec.europa.eu/newsroom/dae/document.cfm? doc_id=54454, archived at http://perma.cc/456J-N5HV; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Tackling Online Disinformation: A European Approach, COM (2018) 236 final (Apr. 26, 2018), at 9, https://eur-lex. europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018DC0236&rid=2, archived at http://perma.cc/MMP9-4VP7.
 For an overview, see Jenny Gesley, European Union: Commission Proposes EU-Wide Code of Practice to Combat Fake News Online, Global Legal Monitor (May 11, 2018), http://www.loc.gov/law/foreign-news/article/ european-union-commission-proposes-eu-wide-code-of-practice-to-combat-fake-news-online/, archived at http://perma.cc/75EG-QUD7.
 Strafgesetzbuch [StGB] [Criminal Code], Nov. 13, 199, BGBl. I at 3322, as amended, §§ 186, 187, http://www.gesetze-im-internet.de/stgb/StGB.pdf, archived at http://perma.cc/X8TS-UCBK, unofficial English translation available at http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.pdf (English version updated through Oct. 10, 2013), archived at http://perma.cc/335U-E4RV.
 Id. § 186.
 Id. § 187.
 Id. § 188.
 Id. § 194, para. 1.
 Strafprozeßordnung [StPO] [Code of Criminal Procedure], Apr. 7, 1987, BGBl. I at 1074, 1319, as amended, §§ 374, 376, http://www.gesetze-im-internet.de/stpo/StPO.pdf, archived at http://perma.cc/68A4-GZZF, unofficial English translation available at http://www.gesetze-im-internet.de/englisch_stpo/ englisch_stpo.pdf (English version updated through Apr. 23, 2014), archived at http://perma.cc/9V5G-GUDE.
 Zivilprozessordnung [ZPO] [Code of Civil Procedure], Dec. 5, 2005, BGBl. I at 3202; BGBl. 2006 I at 431; BGBl 2007 I at 1781, as amended, §§ 935, 940, http://www.gesetze-im-internet.de/zpo/ZPO.pdf, archived at http://perma.cc/MB6Z-7ZZ6, unofficial English translation available at http://www.gesetze-im-internet. de/englisch_zpo/englisch_zpo.pdf, archived at http://perma.cc/9TLR-A3VD.
 Telemediengesetz [TMG] [Telemedia Act], Feb. 26, 2007, BGBl. I at 179, as amended, § 1, para. 1, http://www.gesetze-im-internet.de/tmg/TMG.pdf, archived at http://perma.cc/3YJK-9N48, unofficial English translation available at https://www.huntonprivacyblog.com/wp-content/uploads/sites/28/2016/ 02/Telemedia_Act__TMA_.pdf (English version not updated), archived at http://perma.cc/77GL-8FNJ.
 Staatsvertrag für Rundfunk und Telemedien [Rundfunkstaatsvertrag] [RStV] [Interstate Treaty on Broadcasting and Telemedia] [Interstate Broadcasting Treaty], Aug. 31, 1991, as amended, art. 54, para. 2, https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/Gesetze_Staats vertraege/Rundfunkstaatsvertrag_RStV.pdf, archived at http://perma.cc/U5GH-BE8V, unofficial English translation available at https://www.die-medienanstalten.de/fileadmin/user_upload/Rechtsgrundlagen/ Gesetze_Staatsvertraege/Rundfunkstaatsvertrag_RStV_20_english_version.pdf (English version updated through Sept. 1, 2017), archived at http://perma.cc/7LF3-5D2W.
 Presserat [German Press Council], Publizistische Grundsätze [Pressekodex] [German Press Code] (2017), Complaints Procedure, § 12, para. 5, in conjunction with Press Code, § 16, https://www.presserat.de/ fileadmin/user_upload/Downloads_Dateien/Pressekodex2017_web.pdf, archived at http://perma.cc/2S8C-CB3L, English translation available at https://www.presserat.de/fileadmin/user_upload/Downloads_ Dateien/Pressekodex2017english.pdf, archived at http://perma.cc/AA56-Z4K7.
 Telemedia Act, § 10.
 Oberlandesgericht Hamburg [OLG Hamburg] [Higher Regional Court Hamburg, Mar. 2, 2010, docket no. 7 U 70/09, 7 MultiMedia und Recht [MMR] 490, 491 (2010).
 BT-Drs. 18/12356, at 1, http://dip21.bundestag.de/dip21/btd/18/123/1812356.pdf, archived at http://perma.cc/MD44-LD9G, English version available at http://ec.europa.eu/growth/tools-databases/ tris/en/index.cfm/search/?trisaction=search.detail&year=2017&num=127&dLang=EN, archived at http://perma.cc/BAE2-KAJX.
 Id. at 2.
 For a summary of the criticism, see Georg Nolte, Hate-Speech, Fake-News, das »Netzwerkdurchsetzungsgesetz« und Vielfaltsicherung durch Suchmaschinen [Hate Speech, Fake News, the ”Network Enforcement Act“ and Assuring Diversity Through Search Engines], 61 Zeitschrift für Urheber- und Medienrecht [ZUM] 552, 554 (2017).
 See, e.g., the draft act submitted by the Green Party, BT-Drs. 19/5950, http://dipbt.bundestag.de/dip21/ btd/19/059/1905950.pdf, archived at http://perma.cc/FBW8-FJDP.
 With the exception of reporting requirements.
 See also Jenny Gesley, Germany: Social Media Platforms to Be Held Accountable for Hosted Content Under “Facebook Act”, Global Legal Monitor(July 11, 2017), http://www.loc.gov/law/foreign-news/article/germany-social-media-platforms-to-be-held-accountable-for-hosted-content-under-facebook-act/, archived at http://perma.cc/KX9D-V6JL.
 Network Enforcement Act, § 1, paras. 1, 2.
 Id. § 1, para. 1, sentence 1.
 Id. § 1, para. 1, sentences 2, 3.
 Id. § 3, para. 2, no. 2.
 Id. § 1, para. 3.
 Id. § 3, para. 1.
 Id. § 3, para. 2, no. 5.
 Id. § 2, para. 1.
 Id. § 2, para. 2.
 Id. § 4, in conjunction with Gesetz über Ordnungswidrigkeiten [OWiG] [Act on Regulatory Offenses], Feb. 19, 1987, BGBl. I at 602, as amended, § 30, para. 2, sentence 3, http://www.gesetze-im-internet.de/owig_1968/ OWiG.pdf, archived at http://perma.cc/CSB5-6UHE, unofficial English translation available at http://www. gesetze-im-internet.de/englisch_owig/englisch_owig.pdf, archived at http://perma.cc/3U36-ZJJL.
 Network Enforcement Act, § 4, paras. 4, 5.
 Id. § 4, para. 5.
 For the Federal Law Gazette, see http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_ BGBl&jumpTo=bgbl119005.pdf (last visited Feb. 27, 2019), archived at http://perma.cc/RHK8-AHHJ.
 Gesetze/Verordnungen alphabetisch sotiert [Statutes/Regulations Sorted Alphabetically], Bundesministerium der Justiz und für Verbraucherschutz [Federal Ministry for Justice and Consumer Protection], http://www.gesetze-im-internet.de/aktuell.html (last visited Feb. 27, 2019), archived at http://perma.cc/6BRW-3Z6Q.
 Verwaltungsvorschriften nach Normgeber sortiert [Administrative Regulations Sorted by Author], Bundesregierung [Federal Government], http://www.verwaltungsvorschriften-im-internet.de/ erlassstellen.html (last visited Feb. 27, 2019), archived at http://perma.cc/WT9W-YA3Z.
 Rechtsprechung im Internet [Jurisprudence Online], Bundesministerium der Justiz und für Verbraucherschutz [Federal Ministry for Justice and Consumer Protection], http://www.recht sprechung-im-internet.de/jportal/portal/page/bsjrsprod.psml (last visited Feb. 27, 2019), archived at http://perma.cc/PL37-WL7C.
 Justizportal des Bundes und der Länder [Justice Portal of the Federation and the States], https://justiz.de/onlinedienste/rechtsprechung/index.php (last visited Feb. 27, 2019), archived at http://perma.cc/4CU8-7ALM.
 Deutscher Bundestag, Dokumentations- und Informationssystem [DIP] [Parliamentary Material Information System], http://dipbt.bundestag.de/dip21.web/bt (last visited Feb. 27, 2019), archived at http://perma.cc/D7B2-95DR.
Last Updated: 06/11/2019