Germany’s social media law may force Facebook to be judge, jury, and executioner of free speech

Berlin makes hate speech Facebook’s problem
Berlin makes hate speech Facebook’s problem
Image: Reuters/Pawel Kopczynski
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The German government’s controversial new law, which aims to crack down on hate speech on internet platforms, comes into force today (Oct 1). But while it seems like a progressive step towards combatting this issue, there are concerns that the move could lead to excessive censorship due to the level of fines social media platforms face.

Passed earlier this summer, the law will financially penalize social media platforms, like Facebook, Twitter, and YouTube, if they don’t remove hate speech—as per its definition in Germany’s current criminal code—within 24 hours. They will be allowed up to a week to decide for comments that don’t fall into the blatant hate speech category. The top fine for not deleting hate speech within 24 hours is €50 million ($59 million)—though that would be for repeatedly breaking the law, not for individual cases.

The hope is that the prospect of eye-watering fines will force the social media giants to tackle the problem, something they promised and have spectacularly failed to do in Germany. Justice Minister Heiko Mass said in June that “online platforms are not taking adequate action. Our experience has clearly shown that without political pressure, the social networks will unfortunately not budge,”

However, journalists, lawyers, and free-speech advocates have been voicing their concerns about the new law for months. They say that, to avoid fines, Facebook and others will err on the side of caution and just delete swathes of comments, including ones that are not illegal. They worry that social media platforms are being given the power to police and effectively shut down people’s right to free opinion and free speech in Germany.

The German Journalists Association (DJV) is calling on journalists and media organizations to start documenting all deletions of their posts on social media as of today. “The borders of free speech must not be allowed to be drawn by profit-driven businesses,” said DJV chairman Frank Überall in a recent statement.

Reporters Without Borders also expressed their strong opposition to the law when it was drafted in May, saying it would “contribute to the trend to privatize censorship by delegating the duties of judges to commercial online platforms… as if the internet giants can replace independent and impartial courts.”

Joachim Steinhöfel, a media attorney in Germany, told Quartz there was “no reason for this law, as there are no new penal codes in the regulation.” The huge penalties are completely out of proportion compared to those faced by traditional media in Germany, he says. The maximum penalty imposed on German print, television or radio for airing or printing illegal content is €250,000.

“Social media is a hub for third parties,” he said. “Even prior to this new law, social media was not a law free-zone. Facebook, Twitter et. al. are liable, by civil and criminal law, from the moment they become aware of the content.”

While Steinhöfel agrees that the state needs to do something to make Facebook take responsibility for the proliferation of hate speech on their platforms, he says ultimately it’s the legal system’s responsibility—and it can and has to deal with it.