Germany - Law against Digital Violence

Overview

The BMJ "Eckpunkte für ein Gesetz gegen digitale Gewalt" (published 12 April 2023) sets out foundational policy aims and draft measures to strengthen private legal enforcement against digital violence in Germany. It seeks to reduce practical hurdles for victims of online harms—such as insults, threats, defamation, doxing and criminally relevant deepfakes—by improving access to identity and usage data from hosting providers, social networks, messaging services and internet access providers. Central measures include an expanded private right to information (Auskunftsanspruch), early court-ordered preservation of relevant data, and a narrowly framed possibility for judge-ordered temporary account suspensions where necessary and proportionate. The paper explicitly ties the initiative to the coalition agreement and to related EU-level rules, and sets out a stakeholder consultation process. For the official BMJ publication and downloadable materials see BMJ: Eckpunkte for a Law against Digital Violence (PDF) and the BMJ policy page BMJ: Gesetzgebungsverfahren - Digitale Gewalt.

Definitions

The Eckpunkte paper frames "digital violence" broadly as conduct in online environments that unlawfully infringes personality rights, safety or other protected legal interests and that may be facilitated or amplified by digital services. Key concepts defined or discussed include: "absolute rights" (absolute Persönlichkeitsrechte such as reputation and intimacy), "hosting and platform providers" (Hosting-Dienste, Plattformen), "messaging services" (Messenger-Dienste), "internet access providers" (Zugangsanbieter), "doxing" (publication of private data), and "deepfakes" (synthetic media with potentially criminal effects). The draft approach distinguishes between routine content moderation and legally actionable violations requiring judicially supervised remedies; it also clarifies that anonymous lawful expression remains protected while targeted unlawful acts are addressed via civil procedure and selective preservation/disclosure orders.

Governance and Institutional Framework

The BMJ remains the policy sponsor and lead drafting authority; implementation and enforcement will necessarily involve the judiciary, civil courts and supervisory bodies. Data-protection oversight is to be coordinated with the Federal Commissioner for Data Protection and Freedom of Information (BfDI) as well as relevant state (Land) data protection authorities, while technical and telecommunications-related aspects may involve the Federal Network Agency (Bundesnetzagentur). The Eckpunkte envisage that courts will play a gatekeeping role—the judge as arbiter of preservation and disclosure requests—thus embedding judicial oversight into enforced preservation, disclosure and account-suspension measures. Stakeholder consultation and a public commentary period were part of the process. See the BMJ procedure and press release for consultation details: BMJ press release (12 April 2023) and the BMJ procedure page BMJ: Gesetzgebungsverfahren. The Eckpunkte recommend cross-agency cooperation, including specialist support services for victims and information exchange frameworks between courts and providers.

Key Focus Areas

The Eckpunkte concentrate measures on several complementary domains: (1) Expanded private disclosure rights: widening the scope of the Auskunftsanspruch to include not only account holder identity but also usage data and to reach messenger and internet access providers where necessary. (2) Early preservation orders: judicial powers to require swift, targeted storage of account, content and connection data to prevent loss before litigation concludes. (3) Temporary account suspensions: creation of a narrowly tailored judicial instrument to suspend access to user accounts in exceptional and proportionate cases to stop ongoing or imminent serious harm. (4) Procedural acceleration: mechanisms to speed up civil litigation (e.g., interlocutory injunctive remedies, video hearings, no upfront court fees for certain motions, concentrated jurisdiction) and to bundle proceedings where appropriate. (5) Cross-border reach and representation: obligations for non-EU providers to maintain a domestic service agent for process or to be subject to court-ordered measures when established in other Member States; and (6) Safeguards for fundamental rights: judge-only orders, time-limited measures, proportionality tests and explicit data-protection considerations to protect anonymous speech. The paper highlights specific problem areas such as hate speech, sexual image-based abuse, targeted harassment, doxing and the misuse of synthetic media (deepfakes) and stresses victim support services and legal aid pathways as part of the response.

Implementation Framework

Implementation envisaged a staged drafting process: publication of the Eckpunkte, public consultation (responses requested by 26 May 2023), drafting of a Referentenentwurf (official draft bill), inter-ministerial coordination and parliamentary procedures. The BMJ proposed concrete procedural and technical steps—court forms and templates, an evidence-preservation protocol for providers, notice procedures and an obligation for certain providers to name in-country representatives for service of process. Providers would receive courts' orders digitally and must implement targeted preservation or suspension measures; criminal law aspects remain for prosecutors and courts. The BMJ indicated coordination with EU-level frameworks (notably the DSA) to avoid overlap, and recommended that future implementing guidance address interoperability of preservation mechanisms and secure evidence transfer between providers and claimants' counsel.

Monitoring and Evaluation

The Eckpunkte proposes regular review and centralised monitoring of the law's effects after enactment, including metrics such as number of preservation orders, disclosures granted, account suspension orders, processing times, appeals and observed impacts on fundamental rights and public discourse. The BMJ flagged the need for an evaluation timeline and for stakeholder feedback mechanisms and suggested collecting anonymised administrative data to assess compliance burdens on providers and the practical effectiveness for victims. Coordination with data protection and telecom regulators is recommended for technical monitoring, and the paper foresees a follow-up report to the Bundestag after an initial implementation period.

Penalties, Liability, and Appeals

The Eckpunkte frames liability primarily around civil remedies and court-mandated measures rather than expansive new criminal sanctions. It contemplates enforceable court orders, potentially backed by fines or enforcement measures available under general civil-procedure enforcement rules (e.g., Ordnungsmittel), and leaves the precise administrative sanction regime and amounts to the draft bill. Platform non-compliance with judicial preservation or disclosure orders would expose providers to enforcement proceedings; users subject to account suspensions may have expedited appeal routes. The document emphasises proportionality, judicial review and avenues for users to contest orders to mitigate risks of wrongful deprivation of expressive rights.

Relationship to Other Instruments

The BMJ stresses alignment with the Digital Services Act (DSA), the GDPR, national criminal law and the Network Enforcement Act (NetzDG) legacy. It anticipates removing overlaps by preserving anonymity for lawful speech while enabling targeted disclosure in cases of legal violations. The Eckpunkte proposes that existing criminal offences (threats, coercion, defamation, image-based sexual abuse) remain primary bases for many actions, but that civil procedures be improved where criminal proceedings are slow or infeasible. The document further references the need to coordinate with sectoral regulators and with cross-border judicial assistance mechanisms to ensure effective evidence preservation and service of process.

International Alignment

The Eckpunkte explicitly recognises the need for cross-border cooperation and conformity with EU law. It proposes rules for service representatives for providers without EU establishment, procedures to obtain data from foreign-hosted services, and an effort to avoid divergence from the DSA and other EU instruments. The BMJ frames the law as aimed at achieving compatibility with international privacy, fundamental-rights and platform-regulation standards while ensuring that effective private redress is not frustrated by providers domiciled outside the EU.

Implementation Timeline

Sources and References