Germany considers law to enforce free speech restrictions on social media

While a proposed German law may have noble intentions – enforcing existing limits on free speech, such as Holocaust denial – critics object that it would pressure online giants such as Facebook and Twitter to delete questionable content before it’s deemed illegal.

First Look

German lawmakers are poised to pass a bill designed to enforce the country's existing limits on free speech – including the long-standing ban on Holocaust denial – in social networks. Critics including tech giants and human rights campaigners say the legislation could have drastic consequences for free speech online.

The proposed measure would fine social networking sites up to 50 million euros ($56 million) if they fail to swiftly remove illegal content, including defamatory "fake news."

It's scheduled for a vote in parliament Friday, the last session before summer recess and September's national election, and is widely expected to pass.

The United Nation's independent expert on freedom of speech, David Kaye, warned the German government earlier this month that the criteria for removing material were "vague and ambiguous," adding that the prospect of hefty fines could prompt social media companies such as Facebook and Twitter to delete questionable content without waiting for a court to rule it's unlawful.

"Such precautionary censorship would interfere with the right to seek, receive and impart information of all kinds on the internet," he said.

The bill is the brainchild of Germany's justice minister, Heiko Maas, a member of the center-left Social Democratic Party that is the junior partner in Chancellor Angela Merkel's coalition government. He accuses social networks of failing to prevent their sites from being used to spread inflammatory views and false information long illegal in Germany.

After World War II, the country criminalized Holocaust denial and any glorification of its Nazi past, citing the genocidal results such ideas produced as proof of the need to ban them from public debate.

"Freedom of opinion ends where criminal law begins," Mr. Maas said recently. "Calls to commit murder, threats, insults, incitement to hatred or the Auschwitz-lie [that Nazi death camps didn't exist] aren't expressions of freedom of opinion but attacks on the freedom of opinion of others."

The bill has been spurred by a rise in anti-migrant vitriol that has grown with the arrival of more than 1 million refugees from mostly Muslim countries in the past two years.

Maas blames unbridled social media for stoking tensions that have spilled into real-life violence such as arson attacks on asylum-seeker homes and attempts to kill pro-migrant politicians.

Right-wing websites and social media users have reacted angrily at the bill, accusing the government of trying to silence dissent. Their worst fears appeared to come true when a prominent anti-Muslim commentator, Kolja Bonke, was permanently banned from Twitter earlier this year.

The reason for his ban is still unclear – Twitter refuses to publicly discuss individual cases – but those who hold similar opinions worry they could be next.

"I think [Bonke's suspension] was a severe blow to countless critics of Islam and the government, including me," said one female Twitter user from western Germany who runs the account @anna_IIna. Declining to provide her real name for fear of being targeted by political opponents, she described Twitter as a place for getting unfiltered, real-time information about crimes committed by immigrants – an issue she claims mainstream media suppress.

Michael Wolfskeil, who runs the influential Twitter account @onlinemagazin that posts thousands of videos and photos with anti-immigrant content each month, said he was given two days' notice before being suspended recently.

The Army veteran said the exact reason for his temporary ban, which has now been lifted, was unclear and described Twitter's policies as "very, very murky" – a claim the company disputes.

Unlike others who have moved to more obscure social media sites, Mr. Wolfskeil said he has no plans to stop venting online. "Twitter is the most comfortable place for doing that," he said.

Opposition to the bill, including from constitutional scholars, prompted several last-minute changes last week, but the core elements remain:

• All social media networks with more than 2 million users have to create a channel to process complaints about potentially illegal content.
• Content illegal in Germany has to be removed within seven days – or 24 hours in clear-cut cases such as Holocaust denial.
• Companies can delegate the review process to an independent third party overseen by the Justice Ministry – a concession to critics who warned against putting censorship in the hands of private companies.
• Social networks have to publish a report every six months detailing how many complaints they received and how they dealt with them.
• Companies that persistently fail to respond adequately to complaints, such as by taking too long to delete illegal content, face fines of up to 50 million euros. Each company also has to designate a person responsible for the complaints procedure who is personally liable for fines of up to 5 million euros.
• Social networks must reveal the identities of users accused of defamation or breaching other people's right to privacy.

Twitter and Facebook insist they are trying to address the problem of illegal content and hate speech, conscious of the fact that Germany's justice minister wants to take regulation to the European level as a next step.

Five years ago Germany became the first country where Twitter tested a feature that blocks individual posts or whole accounts due to potentially illegal content. The phrase "account has been withheld in: Germany" is now commonly seen by users there, including for tweets by prominent figures such as the Dutch anti-Islam politician Geert Wilders.

More recently, Twitter has created a system of "trusted flaggers" whose complaints receive special attention because they are deemed particularly trustworthy.

The company has also started testing algorithms to identify accounts set up for the sole purpose of abusing other users. It plans to refine the software so that it can automatically suspend users for limited periods of time if they breach its community standards, though presently such suspensions still require human approval.

Facebook is hiring an additional 3,000 people worldwide – on top of 4,500 existing staff – to review objectionable material. It has also designated refugees a "protected group," meaning that posts directed specifically against that category of people is deemed hate speech.

"We have been working hard on this problem and have made substantial progress in removing illegal content," Facebook said in a statement. "We believe the best solutions will be found when government, civil society and industry work together to tackle this important societal problem."

The company has faced a backlash elsewhere for perceived over-zealous removal of content, such as in the case of AP photographer Nick Ut's iconic "Napalm girl" photo taken during the Vietnam War of a naked girl fleeing an attack.

If passed with the government's large Parliamentary majority, the law is likely to be challenged in courts at the national and European level. Free speech groups argue that political debate in Germany will suffer if companies are forced to police every user's comments.

Users such as @anna_IIna say they won't back down in the online battle for ideas if the law is passed.

"If my account is blocked I'll be sad but then I'll create a new one and start over," she said.