People want to see an end to fake news and illegal hate speech. In some countries, that might include new or strengthened government regulations, but new laws can also create new problems. Given the complexity of this issue, laws alone will never be a silver bullet.

Germany’s Network Enforcement Act, or NetzDG, is sometimes held up as a good example of how to combat hate speech and, to some extent, fake news as well.

A case of good intentions falling short, the NetzDG has not struck a good balance between the government’s interest in tackling harmful content and the importance of freedom of speech. Countries in Asia should think twice before using the NetzDG as a model.

Germany was driven by fears that hate and fake news could influence the Bundestag election campaign in autumn 2017.

The government finalized the act despite most experts advising against the approach.

It entered into force on Oct. 1, 2017, and has been applicable since Jan. 1, 2018.

Under the act, social networks must maintain an effective and transparent procedure for handling complaints about unlawful content. Providers have to delete content that appears to be “obviously illegal” within 24 hours after a complaint has been filed. When content is not obviously unlawful, they have to delete the content within seven days. Violators risk a fine of 50 million euros.

First, it is important to note that the law does not create new definitions of hate speech or fake news. This is positive, given the difficulty of providing precise, easy-to-implement definitions of amorphous concepts like “fake news”.

Instead, it refers to existing criminal offenses in the German penal code and expects platforms to remove such content.

That is where the problems begin. The deadline of 24 hours for removing content that is “obviously illegal” is simply too short.

Many categories of illegal content are very difficult to identify, and context is all-important. For example, a hateful tweet may violate the law, but if I post it in order to critique its message, it may be legal. When courts decide defamation cases, there is very often no black and white.

A district court might decide in favor of the defendant, a federal court can view the matter differently, and a constitutional court might turn the decision around again.

Given the vast amount of online content, it is very difficult to make these decisions quickly at scale. More than 40,000 NetzDG-related complaints are filed per month against YouTube alone.

Given that figure and tight turnaround times due to the threat of large fines, internet intermediaries become incentivized to take down all flagged content, just to save costs and reduce the risk of falling foul of the law.

This has led to criticism that the law causes platforms like Twitter, Facebook and Google to remove legal expressions of free speech out of excessive caution, thereby chilling freedom of expression online.

In one often-cited example, the German justice minister who led the charge for the NetzDG had one of his own tweets removed by Twitter under the law.

The greatest enemy of freedom of speech is vagueness of laws.

The effects are even more subtle: Platforms can choose to remove content under their own content standards in order to be able to report as few NetzDG cases as possible, so that we will never find out what the law’s effect on free public communication actually is.

In order to comply with the NetzDG, companies have had to employ teams of moderators tasked with monitoring complaint lines and responding to takedown requests.

Large companies can absorb this cost. Smaller ones often can’t. So the law can have the unintended effect of inhibiting the growth of local startups and SMEs.

The NetzDG takes that into account by imposing some of the obligations only on big platforms. That, however, has led some extremists to move content to smaller platforms, so the fake news and hate are still there.

There is no one-size-fits-all solution to solve the problem. Where the harm is grave (fake news that is likely to mobilize a mob that might kill people, for example), a NetzDG-like approach might be appropriate.

However, a law to that effect should be narrowly tailored and clear. The greatest enemy of freedom of speech is vagueness of laws.

But we also need systematic support for people who fall victim to misinformation or hate speech. There is already a lot of research to build on. This also includes concepts like information literacy, for example teaching techniques on how bystanders can be mobilized in an online conflict.

And regarding fake information, a system of fact-checking and labelling of doubtful content might be part of the solution.

Simply enacting a law might be cheaper, but only in the short term. When considering measures that impact the freedom of expression, communication and economic growth, a thorough understanding of the potential impact of new laws as compared to other solutions should be the starting point.

Innovative solutions bringing together the government, academia, civil society and industry should be explored.

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The writer is the director of the Hans-Bredow-Institut for Media Research and has the university professorship “Media Law and Public Law including Theoretical Foundations” at the Faculty of Law at Universität Hamburg. He also chairs the Committee of Experts on Internet Intermediaries (MSI-NET) of the European Council.

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