In 2012, a new law came into effect in Germany that strictly regulated all aspects of ecommerce. It required that checkout buttons be consistently labeled, that websites must display all features of the product again before finalizing the transaction, and that the final purchase price and any additional charges must be clearly noted. Any website that does not comply with these rules could find its transactions voided.
The law was known as the "button solution," and it was prompted by a wave of scams that tricked users into signing up for expensive software subscriptions. It's just one example of a stringent regulatory atmosphere surrounding the internet in the EU, with Germany as the prime example. In the US, the internet is like a series of private clubs that make their own rules. In Germany, authorities treat it more like a public park and police it as such.
Americans tend to feel that the internet's lawlessness is part of its appeal — but as revenge porn, internet harassment, aggressive advertising, and hoaxes affect more and more people, the strong-armed approach may hold some appeal.
The German internet is a sort of mirror world of our own, similar in many aspects and totally different in others. Free Wi-Fi is almost unheard of, because the courts hold the owner of a wireless network responsible for any rule-breaking behavior of users who log onto it. For a seven-year period, thousands of music videos were blocked on YouTube because of a royalty dispute between Google and a state-authorized performance rights organization. Ride sharing service Uber, unwilling to concede to stringent exam and health check requirements for drivers, shuttered its Frankfurt office after just 18 months of operation.
“People are much more careful in the way they use content platforms.”
That mirror world can also afford important protections. In Germany, a 2014 ruling established that a former intimate partner can withdraw consent for nude photographs retroactively — even if, as in the case that established that precedent, her former boyfriend had no intention of releasing them online. That’s in contrast to the US, where revenge porn is addressed by a patchwork of state-level legislation that leaves residents of 16 states with little defense against vengeful or abusive exes.
The result, generally speaking, is that both internet services and users tend to tread lightly in the country.
“People are much more careful in the way they use content platforms,” said Zohar Efroni, a Berlin attorney and former Stanford Center for Internet and Society fellow who specializes in international and internet law. “You must be very careful if you rate a business on Yelp or Quip, or other portals that provide information, because it’s very likely that the owner of this business will be able to find you and sue you for defamation or hold you liable.”
Much of the country’s internet law, he says, stems from the notion that intermediaries should be held liable for content that users upload — the opposite of the tenet held by the Digital Millennium Copyright Act.
“You can see it in the operations of intermediaries of all kinds,” he said. “If it’s a blog platform operated by Google, Google is obligated to consider the claims of someone who says their reputation was damaged by something posted on it. Google cannot say, ‘We are protected.’”
More fundamentally, there’s a deep cultural divide between Germany’s customary respect for government and orderliness and Silicon Valley’s laissez-faire affinity for disruption and legal gray areas. Though Google’s products are popular in the country, Germans ominously refer to Google as “the Octopus,” tend to favor the state over private enterprise, and have little patience with American tech companies that dance around the limits of the law to try to gain an upper hand in the market.
That sentiment has played out, in one form or another, against nearly every name-brand US internet giant. For example, Germany has for years protected small bookshops by mandating that all booksellers price books at the same rate, and last year it clarified that the law applied to ebooks as well after Amazon attempted to circumvent those regulations in digital sales. And a justice minister in the country recently threatened Google, Twitter, and Facebook with a half-million Euro fine each time they fail to remove posts that violate German hate speech law within a 24-hour window.
Political speech is a particularly fraught topic in Germany, where laws against Holocaust denial have been enforced since long before the internet — and continue today. Last year, the government closed Altermedia Deutschland, a far-right site, and arrested two of its founders.
In some cases, German internet law can play out in ways that would be anathema on the American web. In 2009, two murderers who served prison time for a 1990 killing sued the Wikimedia Foundation on the grounds that German privacy law protects criminals who have already paid their debt to society. Their names were initially removed from the German version of the online dictionary and later restored after a court reversed the precedent to protect criminals’ identities.
That wasn’t the first time Wikipedia has been a legal target in Germany. In a particularly bizarre case in 2008, a member of the German parliament named Lutz Heilmann won a court injunction that blocked access to Wikipedia.de across the entire country after discovering that his Wikipedia article suggested that he had worked for the Stasi, East Germany’s repressive secret police force.
"I didn't think it through and didn't anticipate the consequences," Heilmann told a German newspaper after withdrawing the injunction following a public outcry.
The most fundamental question might be whether the German internet is a more just — or even pleasant — place due to the country’s aggressive regulation of it. When The Outline posed that question to Efroni, he hesitated and launched into a lengthy breakdown of whether the system works on behalf of content creators, consumers, and intermediaries. Then he paused. “It very much depends,” he said.
But asked the same question, Jillian York, the director of international freedom of expression at the Electronic Frontier Foundation and a resident of Berlin, didn’t mince words.
“While there may certainly be benefits to some of these areas when it comes to privacy, the drawbacks on free speech are severe and in my opinion not worth the tradeoff,” she said.