The phenomenon of so-called “Hate Speech” has been in the public eye for a while now, but particularly in German news. Hate speech denotes verbal attacks and accusations based on personal attributes such as race, religion, ethnic origin, sexual orientation, disability, or gender. Victims of such disgraceful conduct can be individuals or groups of individuals. One essential feature of hate speech is that the originator of the communication hides behind the anonymity of the Internet.

In Germany, we have seen some activity at the legislative end lately. The new Act to Improve Enforcement of the Law in Social Networks (“Network Enforcement Act”, see our German blog post) has been enacted. This highly controversial piece of law came into force on 1 January 2018. In general terms, it obliges social media platforms to delete or block unlawful user-generated content. One month into the year, it is still too early to fully assess the impact of the new law, however, voices can be heard calling for a European solution in this respect.

An example is Austria where law similar to the German Network Enforcement Act is currently in the process of being enacted. In addition and irrespective of this legislative development, the Austrian Supreme Court has addressed the CJEU with the following three questions:

  1. Does Article 15 of the E-Commerce Directive preclude a national court from making an order that obliges a host provider who has failed to quickly remove unlawful content not only to remove the specific content but also other content that is identical in wording in the future? If no, does Article 15 limit the order to a deletion or blocking of content only in the member state or can the obligation be worldwide? And would it only apply to content by the specific user and if yes, limited to the member state or worldwide?
  2. If the CJEU negates the first question, does this also apply to content that is not identical but similar in meaning?
  3. And does this also apply in cases where the social media company has actual knowledge of the content?

These questions are of enormous importance for ISPs. It may be assumed that the CJEU will hand down a decision that will stamp the future standards of review to be applied in cases of hate speech. One can only hope that the judges will get the balance right.

So, can these developments influence the wider strategy to implement a Digital Single Market? As part of the proposed new Copyright Directive we find Article 13, an article dealing with preventing copyright infringements and content recognition technologies where the role and liability of ISPs is also being scrutinized. This article has caused much concern already and both the European Parliament as well as the Council struggle at the time being to form their final position on this issue. At least, an internal document suggests that we will have to show slightly more patience here. No wonder, given that the question involves a clash of interests of various stakeholders who each can refer to solid arguments. In contrast, those intentionally circulating hate speech stand to lose all right to speak up and the task ahead is to find a prudent way to silence them and see if useful precedents are set for developing the Copyright Directive.