Elections, institutions, and the regulatory politics of platform governance: The case of the German NetzDG

Abstract

Policy proposals for higher rules and standards governing how major usergenerated content platforms like Facebook, Twitter, and YouTube moderate socially problematic content have become increasingly prevalent since the negotiation of the German Network Enforcement Act (NetzDG) in 2017. Although a growing body of scholarship has emerged to assess the normative and legal dimensions of these regulatory developments in Germany and beyond, the legal scholarship on intermediary liability leaves key questions about why and how these policies are developed, shaped, and adopted unanswered. The goal of this article is thus to provide a deep case study into the NetzDG from a regulatory politics perspective, highlighting the importance of political and regulatory factors currently under-explored in the burgeoning interdisciplinary literatures on platform governance and platform regulation. The empirical account presented here, which draws on 30 interviews with stakeholders involved in the debate around the NetzDG's adoption, as well as hundreds of pages of deliberative documents obtained via freedom of information access requests, outlines how the NetzDG took shape, and how it overcame various significant obstacles (ranging from resistance from other stakeholders and the European Union's frameworks against regulatory fragmentation) to eventually become law. The article argues, throughout this case study, that both domestic politics and transnational institutional constraints are crucial policy factors that should receive more attention as an important part of platform regulation debates.

Regulatory capacity capture: the United Kingdom’s online safety regime

“…Thirdly, political challenges emphasise "processes through which the domestic regulatory activities of states and other actors set effective rules" (Farrell & Newman, 2010, p. 1). Tracing regulatory processes, scholars show that factors like electoral considerations, regulatory activism pursued by influential politicians and logistical constraints, for example around parliamentary schedules, impact platform regulation Gorwa, 2021). In the UK context, Dommett and Zhu (2022) find that policymakers have struggled to harmonise and find consensus around conflicting policy proposals for an online safety regime, and this has caused delays.…”

“…To reveal context-rich descriptions of regulatory processes within a case, interview-based methods are frequently used in platform regulation scholarship, for example to study regulatory contexts in Australia (Duguay et al, 2020), Germany (Gorwa, 2021), the UK (Dommett, 2021;Dommett & Zhu, 2022), and the United…”

Centrality and power. The struggle over the techno‐political configuration of the Internet and the global digital order

“…The platforms act as intermediaries that, as classic gatekeepers, use their algorithms and terms of service to determine which content can be found, seen and perceived by which users. The rules on how and under what conditions users can exchange information via these central platforms are therefore set by the operators themselves and are only changed under great pressure from users or states (Gorwa, 2021; Katzenbach, 2021). As it is the case for the Russian government's activities, the massive power of these platforms over subnetworks, to a certain degree, also gives them power over the global Internet (Stocker et al, 2021).…”

President’s Power, Transition, and Good Governance

“…Furthermore, William G. Howell and Kenneth R. Mayer explained the President's position in the inter-election period as follows portraits of outgoing Presidents leaving quietly into the night by overlooking an important feature of American politics and executive power including the ability to unilaterally set public policy. The President has the means to effectuate lasting and substantive policy changes internally and externally by executive orders, proclamations, executive agreements, national security, memoranda, and other directives (Gorwa, 2021). A President who is at the pace of spending the last minute in the office tends to take unilateral decisions that are related to domestic and foreign policies.…”