I. Introduction: Online Discourse – Freedom and Responsibility
Freedom of expression, enshrined in Article 5 of the Basic Law (Grundgesetz), is a cornerstone of every democratic society. It enables the open exchange of ideas, criticism of those in power, and the formation of political will. The internet, and social media in particular, have revolutionised this space of discourse, globalising it, accelerating it, and potentially democratising it by giving every individual a platform for expression. Yet these new possibilities also bring considerable challenges: anonymity can lead to disinhibition, disinformation and hate speech spread at breakneck speed, echo chambers and filter bubbles narrow people’s horizons, and targeted disinformation campaigns can undermine trust in the media and in institutions.
Against this background, the question arises how the law of expression can help enable a constructive, fact-based and stable public discourse online, rather than allowing it to be endangered by unchecked destructive forces. It is about the difficult balance between maximum protection for legitimate expressions of opinion – even where they are provocative, uncomfortable or held by a minority – and the need to draw clear lines where expressions violate the rights of others, incite violence, or threaten the foundations of democratic coexistence. From a Hegelian perspective, one could argue that the state, as the realisation of ethical life (Sittlichkeit), has the task of securing the conditions for a reasonable public discourse in which the “spirit” of the community can articulate itself. Regulating online discourse would then be an attempt to uphold this ethical order in the digital space.
The “stabilisation of discourse” through the law of expression appears almost paradoxical: it requires both the comprehensive protection of free speech and the effective limitation of its abusive excesses. In the decentralised, borderless and dynamic online space, this balancing act is considerably more complex than in traditional media. On the one hand, a stable discourse needs a diversity of opinion and the freedom to express even unpopular views. On the other hand, a completely unrestrained “freedom” online can lead to phenomena such as cyberbullying, hate campaigns and the mass dissemination of disinformation, which do not stabilise discourse but actively destabilise and poison it. Laws such as the German Network Enforcement Act (NetzDG) and the European Digital Services Act (DSA) attempt to counteract these destabilising elements by obliging major online platforms in particular to take a more active role in content moderation. The inherent danger here, however, is so-called “overblocking” – the precautionary deletion of legitimate content out of fear of sanctions – and thus a potential restriction of freedom of expression.
It must also be considered that the technical architecture of online platforms – in particular the algorithms used to curate content and the mechanisms of interaction design – has an influence on the quality and stability of online discourse that is at least as great as, if not greater than, that of the legal rules themselves. Algorithms determine which content is prominently displayed to users and can thereby, intentionally or not, foster echo chambers and social polarisation. Design choices, such as “like” buttons, retweet functions or comment sections, can create specific incentives for attention-grabbing but often also emotionalising and extreme statements. The law – for instance the DSA, with its transparency obligations for recommender systems – often attempts, after the fact, to correct dysfunctions that are technologically caused or reinforced. A genuine stabilisation of online discourse therefore requires comprehensive cooperation that goes beyond mere removal orders for illegal content and also takes into account the design of the platforms themselves as well as the media literacy of users.
II. Legal Framework: NetzDG and the Digital Services Act (DSA)
To regulate online content and combat hate speech and other unlawful statements, specific laws have been enacted in Germany and at EU level that place particular obligations on social networks and other online platforms.
The Network Enforcement Act (NetzDG) in Germany, in force since 2017 and colloquially also known as the “Facebook Act”, aims to combat hate crime, punishable false news and other unlawful content more effectively on large social networks (with more than two million registered users in Germany). The core obligations for platform operators include:
- Establishing an easily accessible and effective complaints management system for users to report potentially unlawful content.
- Removing or blocking “manifestly unlawful” content, generally within 24 hours of receipt of the complaint.
- Removing or blocking other unlawful content, generally within seven days of receipt of the complaint; in more complex cases this deadline may be exceeded, for example where the uploader is given a hearing or the decision is referred to a recognised body of regulated self-regulation.
- The obligation to prepare and publish biannual transparency reports on how complaints are handled.
- Appointing a domestic agent for service in Germany for official and judicial notifications.
The NetzDG has been controversial from the outset. Critics point, among other things, to the risk of “overblocking” – that is, deleting content in cases of doubt in order to avoid fines – which could restrict freedom of expression. In addition, the “privatisation of law enforcement” is criticised, since private companies are required to decide on the lawfulness of statements, a task that traditionally falls to the courts. The definition of “manifestly unlawful” and the short deadlines also pose considerable challenges for platforms.
The European Union’s Digital Services Act (DSA), which has applied in full across the entire EU since February 2024, creates a harmonised legal framework for digital services, in particular for online intermediaries and platforms. Its objectives are ambitious: creating a safe, predictable and trustworthy online environment, effectively combating the spread of illegal content, and addressing societal risks that can arise from disinformation or other harmful content. The DSA defines “illegal content” very broadly as any information that is not in compliance with Union law or the law of a Member State. This carries the risk that the strictest national standard could become the benchmark for the entire EU (a “lowest common denominator” effect).
The DSA provides for a graduated catalogue of obligations that depends on the size, reach and potential risk of the services concerned. Particularly strict rules apply to so-called “very large online platforms” (VLOPs) and “very large online search engines” (VLOSEs) with more than 45 million active users per month in the EU. The core obligations for platforms include, among others:
- Establishing user-friendly mechanisms for reporting illegal content.
- Transparent content moderation procedures, including clear statements of reasons for decisions and effective complaint and redress mechanisms (including out-of-court mechanisms).
- Greater transparency for online advertising (labelling, information about advertisers) and for recommender systems (disclosure of the main parameters, alternative options without profiling for VLOPs).
- Special protective measures for minors, including a ban on advertising based on profiling targeted at this group.
- A ban on targeting advertising based on sensitive data (e.g. ethnic origin, political opinions, sexual orientation).
- Comprehensive risk assessment and risk mitigation obligations for VLOPs/VLOSEs, in particular with regard to the spread of illegal content, negative effects on fundamental rights, manipulation of services affecting democratic processes or public security.
- Establishing crisis response mechanisms.
- Cooperation with national authorities (Digital Services Coordinators) and so-called “trusted flaggers”.
Both the NetzDG and the DSA thus shift considerable responsibility for content control – and thus for the “stabilisation of discourse” – onto private platform operators. This represents a fundamental shift in the traditional role of the state in law enforcement and in the interpretation of fundamental rights such as freedom of expression. Traditionally, independent courts decide on the lawfulness or unlawfulness of statements after careful examination. Now it is the platforms themselves that, often under considerable time pressure and the threat of substantial fines, must make far-reaching decisions about the visibility of content. They thereby act as de facto judges of freedom of expression, often without the comprehensive rule-of-law guarantees of court proceedings. The cooperation between the state and the platforms is here, to a large extent, a “forced” cooperation, in which the platforms function as a kind of “deputised sheriff” of the state.
The effectiveness of these laws depends significantly on the willingness of platforms to cooperate and on their human and technical resources, but also on the quality and independence of the “trusted flaggers” and on the capacity of the newly created supervisory authorities. It is a complex system whose success in practice remains to be seen, and one that is likely to lead to a continuous process of adaptation and a certain “arms race” between regulators, platforms and actors seeking to deliberately disrupt discourse.
III. What is “Illegal Content”? Delimitation and Examples
A central problem in regulating online expression is defining what counts as “illegal content”. Neither the NetzDG nor the DSA conclusively defines this term itself, but instead largely refers to existing laws.
Typical categories of illegal content include:
- Criminal offences: Many statements made online can fulfil the elements of criminal offences under the German Criminal Code (StGB). These include, in particular:
- Copyright infringements: The unauthorised uploading and distribution of copyright-protected material (texts, images, music, videos) is a common form of illegal content.
- The spread of false information (disinformation): The mere dissemination of untrue factual claims is not punishable per se, unless specific offences such as defamation or fraud are fulfilled. The line between this and a punishable act is often difficult to draw.
- Violations of youth protection laws.
- Offering illegal goods or services.
The definition of “illegal content” is often heavily dependent on context and requires a complex legal assessment in each individual case. Whether a statement, for example, constitutes a punishable insult or is still satire or sharp criticism protected by freedom of expression can be difficult to judge even for lawyers. Platform staff, who often have to decide under considerable time pressure and without comprehensive legal training, can hardly be expected to make flawless assessments. Automated content-detection systems, too, remain error-prone despite advances in AI, particularly when it comes to interpreting irony, satire, cultural nuance, or complex political statements. This creates an inherent tension between the legal requirement for swift removal of potentially illegal content and the need for a careful, fundamental-rights-compliant legal review. The risk of erroneous decisions – both the mistaken deletion of legal content (overblocking) and the failure to remove illegal content (underblocking) – is therefore inherent in the system.
An additional layer of complexity arises from the terms of service or community guidelines of online platforms. These are often stricter than the statutory requirements and prohibit content that, while not illegal per se, is undesirable from the platform’s point of view (for example, certain forms of nudity, advertising for specific products, spam, or certain political opinions). Platforms rely here on what is sometimes called their “virtual house rules”. For users, it is often unclear whether removal or suspension has occurred because of a legal violation or “merely” a breach of the terms of service. Where platforms fail to communicate clearly and comprehensibly on what basis a moderation decision was made, this can lead to confusion among those affected, a sense of arbitrary censorship, and a loss of trust in the legitimacy of content moderation.
IV. Cooperative Approaches to Stabilising Discourse
Focusing solely on removing illegal content falls short of sustainably stabilising online discourse. Rather, a bundle of cooperative measures is needed that involve various actors and encompass both reactive and preventive elements:
- Effective reporting channels and transparent complaints management by platforms: Users must be able to easily report potentially problematic content and receive comprehensible feedback on the decisions taken. The DSA significantly strengthens users’ rights in this regard.
- Cooperation with “trusted flaggers”: Both the NetzDG and the DSA provide for the possibility of platforms cooperating with so-called “trusted flaggers” – these can be specialised non-governmental organisations, industry associations, or even public authorities. Reports from these entities, classified as particularly reliable, are meant to be handled with priority. The selection and independence of these “trusted flaggers”, however, is a critical point.
- Strengthening fact-checkers and promoting media literacy: Independent fact-checking organisations play an important role in uncovering and correcting disinformation. The EU Code of Practice on Disinformation explicitly provides for measures to strengthen the fact-checking community, for instance through better data access and fair financial contributions. In parallel, promoting media literacy among users is essential, so that they are better able to recognise and critically question disinformation, manipulation and hate speech.
- Industry self-commitments: Codes of conduct, such as the EU Code against Disinformation mentioned above, can make an important contribution if they are ambitiously designed and consistently implemented. They require cooperation among platform operators themselves and with other stakeholders.
- International cooperation among law enforcement authorities: Since much illegal content and many disinformation campaigns operate across borders, effective international cooperation between police and judicial authorities is essential for identifying and prosecuting offenders. In practice, however, this is often associated with considerable legal and political obstacles.
- Fostering positive communication cultures: A genuine stabilisation of online discourse cannot be achieved through prohibitions and removal orders alone. Rather, proactive, cooperative measures are needed to strengthen users’ resilience and to promote positive communication cultures. These include supporting “counter speech” (constructive responses to hate and incitement), creating platform spaces that encourage deliberative and respectful discussion, and highlighting high-quality sources of information.
The economic incentives of many online platforms, which are often based on maximising user engagement and time spent on the platform in order to generate advertising revenue, can, however, conflict with the goals of stabilising discourse. Algorithms are frequently optimised to generate engagement, which not infrequently favours controversial, emotional and polarising content. Consistently combating disinformation and hate speech incurs costs and can reduce the reach of certain content, which in turn diminishes advertising revenue. As long as business models do not create stronger intrinsic incentives for responsible platform behaviour and a healthier discourse, regulation often remains an external constraint that may meet resistance or be circumvented. The discussions around “ethical AI”, “responsible platform design”, and the “demonetisation” of disinformation enshrined in the EU Code of Practice, however, point to a growing awareness of this fundamental issue.
V. Conclusion: A Balancing Act Between Freedom and Order Online
The law of expression in the online context is, and remains, a dynamic and tension-laden field. There are no simple solutions to the complex challenges arising from global digital communication. Statutory frameworks such as the NetzDG and the DSA are attempts to create a framework that protects freedom of expression while curbing the spread of illegal and harmful content.
Ultimately, legislators, platform operators, civil society and every individual user are jointly called upon to take responsibility and to help create and maintain an online discourse space characterised by fairness, respect and the pursuit of truth. This requires continuous effort, adaptability to new technological developments, and above all sustained cooperation among all those involved. The Hegelian notion of “ethical life” (Sittlichkeit), which manifests itself in the institutions and practices of a community, could serve here as a guiding model for developing a responsible digital public sphere.