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New German Law Risks Chilling Effect on Free Speech in Social Media

Germany passed a new law on Friday that imposes fines of up to €50 million on social media services with more than 2 million German users if they fail to remove hate speech or other illegal content. Where the infringement is obvious, it must be done within 24 hours; where it is less obvious it must be done within 7 days.

Germany passed a new law on Friday that imposes fines of up to €50 million on social media services with more than 2 million German users if they fail to remove hate speech or other illegal content. Where the infringement is obvious, it must be done within 24 hours; where it is less obvious it must be done within 7 days.

This must be done in response to a received complaint rather than a judicial instruction — which means that social networks, such as Facebook, need to determine for themselves whether the content is legal or illegal. 

The ‘Enforcement on Social Networks’ law, also known as the ‘NetzDG’ law, has both supporters and opponents. The Central Council of Jews — Germany’s main Jewish organization — commented, “Jews are exposed to anti-Semitic hatred in social networks on a daily basis. Since all voluntary agreements with platform operators produced almost no result, this law is the logical consequence to effectively limit hate speech.”

Facebook has a different view. It said in a statement, “We believe the best solutions will be found when government, civil society and industry work together and that this law as it stands now will not improve efforts to tackle this important societal problem.”

Many civil rights groups fear it will have a chilling effect on free speech. Writing just before the law was adopted, digital rights group EDRi wrote, “In the current version [the one adopted by the German lawmakers], upload and content filters would not be mandatory, but whether or not mandatory, they are likely to be applied by big companies like Facebook. These companies are, quite rationally, driven by the motivation to avoid liability, using the cheapest options available, and to exploit the political legitimization of their restrictive measures for profit. This can only lead to privatized, unpredictable online censorship.”

Facebook’s current filters have been criticized separately. According to an analysis by Propublica, Facebook seeks to develop universally acceptable standards rather than national standards. The result can be conflicting.

For example, it did not remove a post from a U.S. congressman Clay Higgins which called for the slaughter of radicalized Muslims: “Kill them all. For the sake of all that is good and righteous. Kill them all.” It did, however, remove a post from Boston poet and Black Lives Matter activist Didi Delgado who wrote, “All white people are racist. Start from this reference point, or you’ve already failed.”

A common concern over NetzDG is that the size of the potential fines will persuade social media giants to err on the side of their own safety and consequently removing content that is perfectly legal. “Many of the violations covered by the bill are highly dependent on context, context which platforms are in no position to assess,” commented the UN Special Rapporteur to the High Commissioner for Human Rights, David Kaye.

The law could still be stopped by the European Commission since many critics claim that it contravenes basic EU principles on freedom of expression. However, it could also go the other way. According to Spiegel Online today, German Federal Minister of Justice Heiko Maas has plans for government control over the algorithms that underlie the social networks’ content filtering. The plans, suggests Spiegel, would represent “a new regulation of the Internet corporations — affected by a review of the algorithms would be platforms such as Facebook and Google.”

According to Maas, “transparency in the algorithms is the guarantee for preventing discrimination and for self-determination.”

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