More than "Deep Fake": Draft for "Digital Violence" Law Presented

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Federal Justice Minister Stefanie Hubig (SPD) has presented the draft law, expected for weeks, with which victims should be able to better take legal action against the creation and distribution of intimate image recordings, deceptively realistic pornographic depictions, and also cyberstalking. The enforcement of victims' rights should also become easier in civil law. “It is not the victims who should be silenced, but the perpetrators – and digital violence must finally be consistently punished,” said Hubig at the presentation of the draft law, which can now be commented on by federal states and associations.

Three new criminal offenses

The new or revised criminal law provisions now planned are intended to regulate very different situations, which the Ministry of Justice classifies under the term “Digital Violence.” With the new Paragraph 184k of the Criminal Code, it will be prohibited to unlawfully create or distribute intimate image material.

This refers to a broad concept: from secret image recordings of real people and the distribution of recordings originally not intended for a wider audience to “sexualized deepfakes.” Offenses under the new paragraph can be prosecuted as private prosecutions, which is why critics fear that this could lead to public prosecutors' offices almost always dropping the prosecution – and victims being left to enforce their rights.

With a new Paragraph 201b in the Criminal Code, the new AI reality is also to be curbed: it concerns the appearance generated “using a computer program” of “reproducing an actual event relating to another person,” which could significantly damage the reputation of a living or deceased person. The Ministry of Justice's draft provides for up to two years' imprisonment as a consequence; however, in cases involving images of children or adolescents, harsher penalties may already apply.

Stalker Tracking Protection with High Hurdles

Unauthorized tracking is also regulated: with a new §202e in the Criminal Code, secret Bluetooth or GPS trackers, for example, are to become punishable. However, only if this happens “repeatedly or constantly.” Furthermore, it must be probable that the person will suffer “serious harm” – which will likely rarely be easy to prove and will usually only be prosecuted upon the victim's request.

There are further open questions, particularly in the civil law part. Unlike in the criminal law section, victims must first assert their rights against a platform operator to obtain the IP address of the alleged perpetrator. With this IP address, the victim must then request information from the provider whose IP number blocks the perpetrator is assigned to, in order to then seek redress. This presupposes the storage of the assignment of IP addresses to an account holder in advance; in the case of multiple IP addresses used – as is common in mobile communications – the right to information must also disclose the corresponding port number – along with name, date of birth, address, and email address, if available. Both are subject to the so-called judicial reservation: the injured party must file a corresponding application with the court – the procedure should then lead to both disclosures sequentially, without a second procedure having to be initiated.

Right to Information Should Have Broad Impact

In fact, the regulations on the right to information hide much more than the planned legal protection against deepfake pornography, stalking, and other actions that are primarily the focus under the keyword “Digital Violence” – mainly and most recently due to the accusations by actress Collien Fernandes against her ex-husband, often with a sexual component. The proposal now presented by the department headed by Stefanie Hubig encompasses much more: for example, it should also apply in the case of the hardly known criminal offense in §42 of the Federal Data Protection Act, which, among other things, criminalizes the intentional, mass, unauthorized publication of personal data. The right to one's own image (§22 Copyright Act) should also suffice for this.

The planned temporary “blocking of user accounts in social networks” at the request of an injured party is also likely to cause much discussion. On the one hand, the restriction to “social networks” is only intended for certain services. On the other hand, the Justice Minister overlooks that European law and jurisprudence, as well as her own federal government, now assume mixed services. For example, an account would have to be prohibited from posting in WhatsApp or Telegram channels, while the group function would remain unaffected.

Representation by Organizations Should Be Possible

According to the draft, victims should also be able to be represented by authorized organizations in these proceedings. The prerequisite for this should be that they are civil society organizations with a non-profit educational and advisory mandate.

However, one of the organizations likely to be considered is critical today: HateAid. The organization fears prohibitively high costs for victims, as they would first have to pay costs for lawyers of the parties and court costs in the information procedure, only to then try to recover them from the alleged perpetrator. Furthermore, it is not understandable why, although the right to information can now be enforced in a consolidated procedure before the court, a new procedure must be initiated for subsequent removal.

The German Judges Association has already offered practical criticism of the plans in advance. “As long as three investigators have to do the work of four in many chronically understaffed public prosecutor's offices and criminal proceedings have to be discontinued prematurely precisely because of this, politicians are not fulfilling their promise of protection to the victims,” warned Judges Association Managing Director Sven Rehben even before today's presentation of the draft law.

NetzDG Should Finally Retire

Another law should no longer concern the judges: the proposed legislative changes include a new provision on how social networks must designate a representative in Germany if the company has no EU seat. This was previously the last reason for the existence of the Network Enforcement Act (NetzDG), which has otherwise been gutted because it has long been superseded in content by the Digital Services Act. With the new and more extensive regulation, the law originally introduced by a grand coalition should therefore be definitively abolished – for the third time. However, the planned new provision will likely change little in reality – because without a formal delivery option, even the delivery of a finding by the competent authorities is almost impossible, as the years-long saga surrounding Telegram has shown.

(mki)