YouTube sues against network enforcement law

Google has filed a lawsuit against the Network Enforcement Act on behalf of YouTube. The lawsuit is aimed primarily at the obligation to disclose data to the Federal Criminal Police Office, as well as the cross-appeal procedure.

YouTube does not want a reporting obligation to the BKA

The newly introduced obligation for large Internet platforms not only to delete unlawful posts, but also to report them to the Federal Criminal Police Office without being asked to do so, together with personal data of the respective user, was already sharply criticized before the lawsuit that has now been filed. In the past, associations active in net politics in particular pointed out that this would create a comprehensive suspicious activity database at the BKA, which would contain masses of personal data on a wide variety of people and for which there would be no deletion period. It was also pointed out that the platforms themselves could not classify beyond doubt which posts actually violated applicable law – which could lead to numerous data on people who had not left the legal sphere ending up with the BKA. Essential data protection and rule of law aspects would thus be undermined.

YouTube is now seeking to have the obligation, which is scheduled to take effect on February 1, 2022, lifted. In addition to an urgent application to exempt YouTube from the obligation, Google has also initiated proceedings on the merits, which should lead to a comprehensive clarification of the regulation. A decision in the summary proceedings is expected in two to three months. The decision in the main proceedings, on the other hand, is likely to be made in a year at the earliest.

A Google spokesperson made it clear that while Google wants to help prevent hate crime on the web, it also has massive reservations about the regulation: The law would lead to “them [YouTube and Co] having to automatically, massively and stockpile user data to law enforcement agencies, without a legal order and without the knowledge of those affected, based solely on the presumption of illegality,” which Google believes is “contrary to constitutionally guaranteed fundamental rights.”

Litigation also against counter-proceedings

In addition, the lawsuit is also directed against the counter-appeal procedure. The regulation on this procedure obliges YouTube and Co to justify decisions to delete or not to delete reported contributions in the event of an objection to those affected in each individual case. In doing so, the companies are obliged to protect the identity of the person making the complaint and not to inadvertently forward it to persons affected by the deletion. Google sees this as a government task that is outsourced to private companies by law. The company also pointed out that complete anonymity could not be guaranteed, which would expose users who reported right-wing extremist posts, for example, to danger, the subsequent deletion would have to be justified to the person who created the post.

In addition, aspects of European law are also affected, as Google also refers in its complaint to the country of origin principle, which may only be violated in justified exceptional cases. Accordingly, Irish and not German law would have to apply to Google.