Germany’s Online Crackdowns Inspire the World’s Dictators
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Germany’s Online Crackdowns Inspire the World’s Dictators
An anti-hate speech law written in Berlin has
been copy-pasted by authoritarian regimes from Caracas to Moscow.
BY JACOB MCHANGAMA, JOELLE FISS
The German government has responded to a recent spate of
right-wing extremist violence with a commitment to
enact tough new measures against online hate speech. These would expand
Germany’s existing efforts along these lines—but seemingly without any
consideration of the pernicious effects they’ve already had around the world.
As our new report shows,
Germany’s ongoing crackdown on online speech has been closely watched, and
copied, by authoritarian governments eager to curb political dissent.
The crackdown began after 2015, when
Chancellor Angela Merkel’s decision to welcome more than 1 million refugees
and asylum-seekers was greeted with a tidal wave of protest ranging from
derision to visceral hatred on social media. The anger migrated from the online
trolling and memes of keyboard warriors into actual attacks on
refugee centers across Germany.
Sensing a loss of control,
then-Minister of Justice Heiko Maas wrote a stern letter to Facebook
warning the tech giant that, despite the need for free speech, “The internet is
not a lawless space where racist abuse and illegal posts can be allowed to
flourish.” Maas demanded much stricter policing of content violating German law
and Facebook’s own community standards. Facebook and other tech companies agreed to a voluntary deal under which
they would remove content deemed illegal within 24 hours.
Facebook’s removal rates failed to
satisfy Mass, however, and he decided that legally binding measures were
necessary to curb the flood of online hate. In 2017, the government introduced
the Network Enforcement Act, which was adopted that same year and entered into
force early 2018.
The law imposes so-called intermediary
liability for social media networks with over 2 million registered users. Any
content, which is “manifestly unlawful” must be removed in a time frame of 24
hours. For all other “unlawful” content, the deadline is seven days. Failure to
remove illegal content is punishable by fines of up to 50 million euros, about
$55 million.
The Network Enforcement Act’s detractors argue
that it delegates to the private sector the role of cybercop with little
transparency or due process. This encourages social media companies to
over-implement by providing an incentive to err on the side of caution to avoid
fines. While no new offenses were crafted for the law, some of the existing definitions
of “unlawful” are problematic in themselves.
This includes most glaringly Germany’s
approach to the offense of “defamation of religions,” which violates international
human rights standards. Article 19 of the International Covenant
on Civil and Political Rights guarantees freedom of expression
including the “freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers.” In 2018, the United Nations’ independent
expert on freedom of expression expressed concern about
the new act and other state-imposed models of intermediary liability as
potential violations of Article 19.
The Network Enforcement Act has woven
itself into the landscape of internet governance at a time when many states
worldwide are pushing for increasing regulation to fight online threats, both
real and imagined. The critics of the law who warned that
the act might legitimize a model of online censorship that can readily be
adapted to serve the ends of authoritarian states have been proved right. Our
new research shows that in less than two years the law has essentially been
copy-pasted by governments around the world—most of which do not match
Germany’s commitment to democracy, the rule of law, and human rights.
Since the adoption of the new German
law, at least 13 countries—in addition to the European Commission—have adopted
or proposed models of intermediary liability broadly similar to the act’s
matrix. According to Freedom House’s 2019 assessment of freedom on the internet, four of those countries are
ranked as being “not free” (Venezuela, Vietnam, Russia and Belarus, Honduras is
not surveyed but is ranked as “not free” on press freedom),
five are ranked “partly free” (Kenya, India, Singapore, Malaysia, and the
Philippines), and only three are ranked “free” (France, the United Kingdom, and
Australia). With the exception of India, Kenya, Vietnam, and Australia, all
these countries—as well as the European Commission—have explicitly referred to
the Network Enforcement Act as an inspiration or justification for their models
of intermediary liability.
Moreover, several of these countries,
including Venezuela, Vietnam, India, Russia, Malaysia, and Kenya, require
intermediaries to remove vague categories of content that include “fake news,”
“defamation of religions,” and “anti-government propaganda,” and many of them
include overly broad definitions of hate speech that go much further than the
German law. A Russian bill signed
into law by President Vladimir Putin in March is a good example. It defines
“unreliable information” as follows:
“Socially significant information disseminated under the guise of
reliable messages, which creates a threat to life and (/or) the health of
citizens or property, the threat of mass disturbance of public order and (/or)
public safety, or the threat of creating or impairing the proper operation of
vital elements of transport or social infrastructure, credit institutions,
energy facilities, industry or communications.”
Any
controversial opinion or criticism of the government could plausibly be covered
by this overly broad and vague definition, which falls considerably short of
international human rights standards.
The explanatory report of the Russian
bill explicitly referred to the Network Enforcement Act, and, responding to
criticism, Kremlin representatives argued that
false information “is regulated fairly harshly in many countries of the world
including Europe. It is therefore of course necessary to do it in our country
too.” This is a clear example of how Germany’s internet law provides cover for
authoritarian states attempting to restrict online content.
In May, Singapore adopted the
wide-ranging Protection from Online Falsehoods and Manipulation Bill. The law
includes a vague definition of “false statements of fact,” authorizing a
minister to issue directions to internet intermediaries that must correct or
disable content. Prior to the adoption of the bill, a preliminary report referenced
the German law. What might constitute false statement of facts? A 2018 report by
the policy forum of Singapore’s ruling People’s Action Party highlighted a
Human Rights Watch report critical of press freedom restrictions in Singapore
as based on “deliberate falsehoods” used to “advocate political change.” In
other words, the law may well be used to target human rights and civil society
groups shining a critical light on the Singaporean government.
However, both the Russian and
Singaporean laws pale in comparison to the sweeping category of illegal content
covered by Vietnam’s draconian Law on Cybersecurity,
which passed in 2018 and prohibits: “propaganda against the Socialist Republic
of Vietnam,” “distortion or defamation of the people’s administrative
authorities,” “psychological warfare … causing division or hatred between
[Vietnamese] ethnic groups, religions and people of all countries,” “insulting
the [Vietnamese] people, the national flag, national emblem, national anthem,
great men, leaders, famous people or national heroes,” and “invented or
untruthful contents causing confusion amongst the Citizens.”
It is also problematic that some states,
including Russia and Vietnam, have established (or proposed to establish)
governmental entities responsible for notifying and ordering intermediaries to
remove illegal content without any independent review or complaint mechanisms.
When you combine the sweeping nature of the prohibited content with the lack of
meaningful oversight, it is clear that these laws will serve to further
entrench tight government control over an already restrictive online sphere.
Several of the laws or proposals we
identified, including in the U.K. and India, don’t merely rely on a
notification and takedown regime. They establish a “duty of care” requiring
intermediaries to actively police and preventively remove illegal or
undesirable content. Such a step may encourage automated moderation or
filtering of user content through artificial intelligence and upload filters.
This essentially poses the risk of reintroducing government-mandated
prepublication censorship enforced by private tech companies. In the 18th and
19th centuries, European censors lost the struggle to keep up with clandestine
publications and increasingly sophisticated printing presses. Consequently,
pre-publication censorship all but died in the second half of the 19th century, only to be revamped and
revitalized by totalitarianism in the 20th century.
But in the digital age, censorship may ultimately be able to search and destroy
undesirable content at a scale previously unimaginable.
All these developments suggest that
the Network Enforcement Act has provided an important impetus for, and
legitimacy to, models of intermediary liability that violate freedom of
expression as set out in Article 19 of the International Covenant on Civil and
Political Rights. This development contributes significantly to the weakening
of the already perilous state of internet freedom around the world.
The adverse consequences of the
Network Enforcement Act were certainly not intended by the German government.
In conjunction with the German constitution and commitment to the rule of law,
the act provides safeguards absent from the most draconian laws subsequently
adopted by other states. Indeed, several of the countries that have mimicked
the German law had already implemented severe restrictions of online freedom
prior to the German initiative and would likely have tightened their grip
irrespective of the Network Enforcement Act.
Yet, the act seems to have provided
several states with both the justification and the basic model for swift and
decisive action. Unwittingly, Europe’s most influential country has contributed
to the erosion of global internet freedom by developing and legitimizing a
prototype of online censorship that can readily be adapted to serve the ends of
authoritarian states.
In a world where both online and
offline speech is under systematic global attack, democracies have a special
obligation to err on the side of free speech. Succumbing to the ever-present
temptation of fighting illiberal ideas with illiberal laws is shortsighted and
irresponsible. Once democracies cede the high ground, authoritarians will rush
in, creating a regulatory race to the bottom. This entails severe and negative
consequences for free speech, independent media, vibrant civil society, and
political pluralism, without which authoritarianism cannot be defeated, nor
democracy defended.
Joelle
Fiss is a human rights
expert, researcher and analyst based in Geneva, Switzerland, and a member of
the OSCE/ODIHR
Panel of Experts on
Freedom of Religion or Belief. Joelle has worked for Human Rights First and for
the Alliance of Liberals and Democrats in the European Parliament.
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