Germany set out to delete hate speech online. Instead, it made things worse.
Germany set out to delete hate speech online. Instead, it
made things worse.
By Bernhard Rohleder February 20 at 2:25 PM
Bernhard Rohleder is the chief executive officer of
Bitkom, Germany’s federal association for information technology,
telecommunication and new media.
BERLIN — The German government’s Network Enforcement Act,
which came into effect on Jan. 1, aims to improve law enforcement on the
Internet and more effectively fight hate crime. The law targets criminal online
offenses including defamation, incitement and sharing unconstitutional symbols,
such as the swastika.
But within just a few days of coming into effect, the
inevitable has become apparent: legitimate expressions of opinion are being
deleted. The law is achieving the opposite of what it intended: it is actually
hampering the fight against crime.
The operators of social networks that are subject to the
law now have to delete “obviously illegal” content within 24 hours of being
notified. Other illegal content must be reviewed by social networks within
seven days of being reported and then deleted. If the complaint management
requirements are not met, fines of up to 50 million euros may be imposed. This
puts companies under tremendous time pressure to check reported content.
But the most problematic issue is that the new law tasks
private companies, not judges, with the responsibility to decide whether
questionable content is in fact unlawful. In other words, the state has
privatized one of its key duties: enforcing the law.
Furthermore, for each complaint, deletion of online
content is deletion of the evidence one would need in court (unless evidence
has been secured in a way that will stand up in court). In terms of practical
law enforcement, once something has been deleted, it cannot be used for
forensic purposes.
Numerous legal experts believe that the new law violates
the German constitution, particularly Article 5, which guarantees the freedom
of expression and the right to information. Take this example: Last year, a
satirical program referred to a member of the German parliament as a “Nazi
slut.” Many people would have deemed this an “obviously illegal” insult that
should be deleted. However, a court ruled otherwise.
Determining what’s legal speech and what’s not is a
tricky task, especially when it comes to satire and art. But we must not hand
over this critical task to private companies — which, by the way, are often
foreign companies. Private enterprises — including America’s largest tech
companies — must not be allowed to decide how our basic rights to freedom of
speech and opinion ought to be interpreted.
What might a feasible alternative look like? Courts,
public prosecutors and police departments need to be outfitted with much better
resources — meaning more staff, more knowhow and more money. Just as they take
action thousands of times every day against misdemeanors and criminal offenses,
it’s up to them to enforce the law on the Internet. It is up to the courts to
decide on right and wrong.
And simply deleting content is not enough. The only way
evil can be rooted out is for perpetrators to realize that their actions on the
Web have consequences.
Germany is setting a bad example to the European Union
with the Network Enforcement Act. With its many and varied cultural regions,
Europe must remain a model and pioneer of freedom of expression throughout the
world. Those lacking an understanding of German law — French President Emmanuel
Macron, for example — are pointing to Germany to legitimize their own plans
against fake news. Moreover, decision-makers in Russia and China must be
gleefully rubbing their hands in triumph as they can now refer to the German
example when being criticized by Western governments for oppressing free
speech.
Yes, pluralism is hard work, and it is cumbersome to read
and deal with all the comments people make online. But we must not throw
certain principles overboard because of this.
This was produced by The WorldPost, a partnership of the
Berggruen Institute and The Washington Post.
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