UN High Commissioner for Human Rights (OHCHR) thinks "Suck my Dick" is great cinema but German Justice Minister Heiko Maas better take a hike

Er, there's spinach between your teeth.

Oh man, where do you start with douchebag 'Fatzke' Heiko Maas, the Justice Minister from Germany? The great cinematic oeuvres of his retreaded muse Natalia, Heiko on his Cervélo, or Heiko and Natty rearranging some furniture worth to the tune of, ooh hold your breath, a pompous € 9,000 in their Westwing, or how about with a mellifluous thing like "Netzwerkdurchsetzungsgesetz"? After all, this is Germany with its word concoctions the length of a freight train. No one knows who invented that name, not even the Heiko himself.

The  Special Rapporteur  on the  promotion and protection of  the  right  to  freedom  of opinion and  expression took a glance at Heiko Maas law and on first reflection thought he was sitting in the lounge of the Amanzi Lodge in Zimbabwe with Robert Mugabe lurking over his shoulder. Relax, it was only the dapper Heiko. Still, that was enough to write his Report. (Pdf download)

REFERENCE: OL DEU  1/2017 

Excellency, 1  June  2017 

I  have  the  honour  to  address  you  in  my  capacity  as  Special  Rapporteur  on  the promotion  and  protection  of  the  right  to  freedom  of  opinion  and  expression,  pursuant  to Human Rights Council  resolution 34/18. 

(He added off the record that he considered​ Natalia to be a pretty hot bitch before he continued in his business.)

In  this  connection,  I  would  like  to  bring  to  the  attention  of  your  Excellency’s Government information I have received concerning the draft law “Netzdurchführungsgesetz”,  presented  by  the  Government  on  14  March  2017,  and expected  to  be  voted  on  in  Parliament  before  the  national  elections  of  September  2017. The  law  raises  serious  concerns  about  freedom  of  expression  and  the  right  to  privacy online.

According  to the  information received: The  Netzdurchführungsgesetz  (hereinafter  “the  bill”)  was  proposed  by  the German  Cabinet  on  14  March  2017.  The  bill  was  introduced  as  a  measure  to protect  network  users  against  hate  speech  and  misinformation  online  by  putting pressure  on  social  media  companies  to  respond  to  user  complaints  and  delete criminal  content  from  their  websites.
  ...

Concerns  at  the  bill’s  over-regulation  of  social  media  has  been  expressed  by  the European  Commissioner  for  the  Single  Digital  Market,  who  has  encouraged  selfregulation.

Before identifying the concerns raised by the bill, I want to note that article 19 of
the International Covenant on Civil and Political Rights (ICCPR), ratified by Germany on 17 December 1973, protects everyone’s right to maintain an opinion without interference and to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media. Under article 19(3) of the ICCPR, restrictions on the right to freedom of expression must be “provided by law”, and necessary for “the rights or reputations of others” or “for the protection of national security or of public order (ordre public), or of public health and morals”. Under Article 20, States are obligated to prohibit by law “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”, but such restrictions must meet the strict conditions of article 19(3) (CCPR/C//GC/34). Permissible restrictions on the internet are the same as those offline (A/HRC/17/27).

Under the article 19(3) requirement of legality, it is not enough that restrictions on
freedom of expression are formally enacted as domestic laws or regulations. Instead, restrictions must also be sufficiently clear, accessible and predictable (CCPR/C/GC/34). The requirement of necessity also implies an assessment of the proportionality of restrictions, with the aim of ensuring that restrictions “target a specific objective and do not unduly intrude upon the rights of targeted persons”. The ensuing interference with third parties’ rights must also be limited and justified in the interest supported by the intrusion (A/HRC/29/32). Finally, the restrictions must be “the least intrusive instrument among those which might achieve the desired result” (CCPR/C/GC/34). The prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence under article 20(2) of the ICCPR must be read in light of the strict requirements of article 19(3).

In addition, article 17(1) of the ICCPR provides for the rights of individuals to be
protected, inter alia, against unlawful or arbitrary interference with their privacy and correspondence, and provides that everyone has the right to the protection of the law against such interference. “Unlawful” means that no interference may take place except in cases envisaged by the law which in itself must comply with provisions, aims and objectives of the ICCPR. Articles 17 and 19 of the ICCPR are closely connected, as the right to privacy is often understood to be an essential requirement for the realization of the right to freedom of expression (A/RES/68/167, A/HRC/27/37, A/HRC/23/40, A/HRC/29/32).

While it is recognized that business enterprises also have a responsibility to
respect human rights, censorship measures should not be delegated to private entities (A/HRC/17/31). States should not require the private sector to take steps that unnecessarily or disproportionately interfere with freedom of expression, whether through laws, policies or extralegal means (A/HRC/32/38).

The full texts of the human rights instruments and standards outlined above are
available at www.ohchr.org and can be provided upon request. In light of the above standards of international human rights law, I would like to present the following observations and concerns raised by sections 3 and 4 of the bill:

(The Commissioner gives details about the bill ... before he raises his concerns)

Concerns: 

The State has a legitimate interest and responsibility to protect against terrorism,
child pornography, and hate speech that constitutes incitement to discrimination, hostility or violence. The question that arises relates to the way in which the bill seeks to achieve legitimate objectives, in particular the responsibilities it places upon private companies to regulate the exercise of freedom of expression, and whether the measures proposed by the bill would be lawful under international human rights law.

The obligations placed upon private companies to regulate and take down content
raises concern with respect to freedom of expression. A prohibition on the dissemination of information based on vague and ambiguous criteria, such as “insult” or “defamation”, is incompatible with article 19 of the ICCPR. The list of violations is broad, and includes violations that do not demand the same level of protection. Moreover, many of the violations covered by the bill are highly dependent on context, context which platforms are in no position to assess. In addition, the vague definition of “social network” raises questions as to the range of actors covered by the scope of the bill. According to the wording, it would cover all kinds of providers, including messaging services. At the same time, according to the explanatory notes to the bill, the law would not apply to email and messengers.

The provisions imposing high fines for non-compliance with the obligations set
out in the bill raise concerns, as these obligations as mentioned above may represent undue interference with the right to freedom of expression and privacy. The high fines raise proportionality concerns, and may prompt social networks to remove content that may be lawful.

The risk appears even higher considering the strict time periods of 24 hours and 7
days according to which social networks must assess and remove content in violation of domestic law. The short deadlines, coupled with the afore-mentioned severe penalties, could lead social networks to over-regulate expression - in particular, to delete legitimate expression, not susceptible to restriction under human rights law, as a precaution to avoid penalties. Such pre-cautionary censorship, would interfere with the right to seek, receive and impart information of all kinds on the internet.

Further, I am concerned with the lack of judicial oversight with respect to the responsibility placed upon private social networks to remove and delete content. Any legislation restricting the right to freedom of expression and the right to privacy must be applied by a body which is independent of any political, commercial, or unwarranted influences in a manner that is neither arbitrary nor discriminatory (A/HRC/17/27). The liability placed upon private companies to remove third party content absent a judicial oversight is not compatible with international human rights law.

I am also concerned at the provisions that mandate the storage and documentation
of data concerning violative content and user information related to such content, especially since the judiciary can order that data be revealed. This could undermine the right individuals enjoy to anonymous expression (A/HRC/29/32). Such restrictions on anonymity, in particular absent judicial oversight, facilitate State surveillance by simplifying the identification of individuals accessing or disseminating prohibited content. By requiring complaints and measures to be documented and stored for an undisclosed amount of time, without providing further protection mechanisms against the misuse of such data, individuals become more vulnerable to State surveillance. These provisions also allow for the collection and compilation of large amounts of data by the private sector, and place a significant burden and responsibility on corporate actors to protect the privacy and security of such data (A/HRC/23/40).

Finally, I am concerned at the possibility that users claiming a violation would be entitled to be given access to subscriber data without prior court approval. The protection of anonymity, including protection against unlawful and arbitrary interference by state or non-state actors, plays a critical role in securing the right to freedom of opinion and expression. The absence of a judicial warrant for the disclosure of individual information would represent a restriction that is neither targeted nor protecting of due process rights, and it would therefore not meet the strict test required for restrictions on privacy and expression (A/HRC/29/32).

In view of these observations, I would like to call on your Excellency’s
Government to take all steps necessary to conduct a comprehensive review of the bill to ensure its compliance with international human rights law.

As it is my responsibility, under the mandate provided to me by the Human Rights
Council, to seek to clarify all cases brought to my attention, I would be grateful for any additional information and comment you may have on the above.

I would appreciate receiving a response within 60 days. I would like to inform you that this communication will be made available to the public and posted on the website page for the mandate of the Special Rapporteur on the right to freedom of expression: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/LegislationAndPolicy.aspx.

Your Excellency’s Government’s response will be made available in a report to be
presented to the Human Rights Council for its consideration. 

Please accept, Excellency, the assurances of my highest consideration.

David Kaye

Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
. . . (End) . . .

To which I wish to add in the direction of Berlin:

Please accept, Your Dickheadedness, the assurances of the highest commotions in my digestive tract. Relief would most certainly be assured by your buggering off from the palcoscenico.