The spreading of hate messages and the threat of other people on social networks will soon be punished in Germany with more severe penalties. On July 3, 2020, the Bundesrat approved the "Law on Combating Right-Wing Extremism and Hate Crime", which had already been voted by the Bundestag in mid-June.
The core of the new law is the introduction of a reporting obligation for social network operators to the Federal Criminal Police Office (BKA). In future, posts with certain potentially criminal content will no longer simply be deleted, but reported to the BKA with the IP address and port number. This obligation to report is to apply in particular in the case of incitement of the people, murder or rape threats and is intended to ensure faster intervention by the investigating authorities and more effective prosecution.
In addition, the law provides for a significant expansion of the punishability of certain offences such as threat (§ 241 Criminal Code) and insult (§ 185 Criminal Code). In future, a threat will no longer be punishable only when the person concerned is threatened with the commission of a crime, but already when he or she is threatened with acts against sexual self-determination, physical integrity, personal freedom or against things of significant value.
The background to the much-discussed law is the worrying rise in the number of right-wing extremist acts of violence and, among other things, the murder of Kassel's District President Walter Lübcke. According to Justice Minister Christine Lambrecht, the newly adopted act should help to "break the spiral of hate and violence as early as possible".
Nevertheless, data protection activists and members of the opposition parties have in some cases strongly criticised the new act, particularly with regard to data protection and the intrusion into the secrecy of telecommunications (Article 10 German Basic Law).
In France, the "Loi Avia" was adopted on 24 June 2020, which also aims to combat hate crime on the Internet. However, the bill introduced by Laetitia Avia had to go through some difficult stages. On 18 June 2020, the Conseil Constitutionnel, appealed to by more than 60 Republican senators, declared many of the provisions of the law unconstitutional.
The original draft law had provided for the obligation for operators of online platforms and search engines to remove obviously illegal content such as incitement to hatred, as well as racist or anti-religious insults, within 24 hours of notification and provided for a fine if the deletion was not made within this time limit.
After the decision of the Conseil Constitutionnel, little remains of the French law against hate crime. There are still the provisions for the creation of an investigative unit specialised in online hate messages and the creation of an observatory, for the monitoring and analysis of the development of hate content, attached to the Conseil supérieur de l'audiovisuel (CSA), and provisions for the simplification of the reporting of hate messages.
However, it is interesting to note that both in France and in Germany there is a firm political will to take measures against hate crime on the Internet. The decision of the Conseil Constitutionnel illustrates the difficulties that exist in passing such laws with regard to fundamental rights.
In Germany, unlike in France, the Federal Constitutional Court is not consulted before a law is adopted to review constitutionality. But this can very well happen after the passing of a law...