New German law fines social media companies for failing to remove hate speech, raising free speech concerns

By: Alexandra Arkin.

In the wake of the Charlottesville violence in August, Silicon Valley is beginning to take a stronger stand against white nationalists, white supremacists, neo-Nazis, and other hate groups.[1]

While tech companies remove violent propaganda from terrorist groups, they usually avoid passing judgment on content “except in cases of illegal activity.”[2]  Now, they appear to be rethinking how far they will go to combat hate speech.[3]

Facebook has shut down pages connected to the white supremacist rally;[4] Twitter, YouTube, Spotify, and LinkedIn have suspended several extremist accounts;[5] Reddit eliminated a discussion community supporting “Unite the Right,”[6] and dating app OkCupid kicked white nationalist Christopher Cantwell off its website.[7]  Even PayPal has blocked hate groups,[8] following a report by the Southern Poverty Law Center that the company’s services were used to fund the rally.[9]

In contrast, Germany has long taken a different approach, and is even ramping up its efforts.  A new law passed on June 30, 2017 will fine social media companies up to €50 million (more than $58 million) for failing to promptly delete illegal, racist, or slanderous comments and posts.[10]

The new law requires companies to remove any content illegal in Germany, including Nazi symbols or Holocaust denials, within 24 hours of it being reported by users.[11]  Companies have up to seven days to remove content flagged as offensive that may not be not clearly defamatory or inciting violence.[12]  Additionally, every six months, they must publicly report the number of complaints received and their dispositions.[13]

The law takes effect in October and applies to social media sites with more than 2 million users in Germany.[14]

Germany’s free speech and anti-defamation laws were already more stringent than the U.S.’s,[15] and among the most restrictive in Europe.[16]

The flood of refugees into Europe and the spread of “fake news”  -  false information packaged as legitimate news[17]  -  have heightened the debate, and social media companies have been criticized for not doing enough to combat the spread of fake news.  As refugees have arrived in Germany (including 890,000 in 2015[18]), the German government has tried to get social media platforms to crack down on increased anti-immigrant comments online.[19]

Facebook and Google have clashed with German lawmakers about permissible postings on their social networks.[20]  In response to criticism and hate speech targeting refugees, tech companies agreed in 2015 to cooperate with German officials to remove xenophobic and racist content within 24 hours,[21] making it easier for users to report hate speech to the companies.[22]

However, a yearlong study published in March revealed that Facebook and Twitter failed to meet the German target of removing 70% of hate speech within 24 hours.[23]  While they eventually took down nearly all illegal hate speech, Facebook removed 39% within 24 hours, and Twitter just 1%.[24]  Google’s YouTube video service removed 90% within 24 hours.[25]

In response to criticism for their role in the proliferation of fake news during the U.S. presidential election, both Facebook and Google said they would take further steps to combat the issue before the upcoming elections in Europe.[26]

Nevertheless, hate speech/anti-immigrant propaganda and fake news persist,[27] and both issues have taken on new urgency ahead of Germany’s parliamentary elections in September.[28]  Chancellor Angela Merkel and her refugee policy have been targeted by false news stories and insults aimed at arousing fear and altering voters’ perceptions.[29]  Officials worry fake news may thus influence the elections’ outcomes.[30]  Furthermore, after the U.S. presidential election, there are concerns about Russian interference in the German elections through hacking, propaganda, and fake news.[31]  German Justice Minister Heiko Maas, who introduced the new law,[32] said, “Anyone who tries to manipulate the political discussion with lies needs to be aware (of the consequences).”[33]

German communications experts welcomed the law, with one stating, “You can’t just defame people, just because it’s the internet.”[34]

However, politicians,[35] digital and human rights groups,[36] and tech companies opposed the law.[37]  A German parliamentary body even found in a non-binding opinion that the bill infringes on the constitutional right to freedom of expression and does not clearly define illegal content.[38]

Some believe the bill’s supporters were trying to score political points before the elections while ignoring issues that have allowed hate speech to spread.[39]  And the resultant law could damage free speech.[40]  Social media platforms may decide to pull legal content out of excessive caution,[41] causing users to avoid posting permissible material.[42]  The law had a chilling effect even before its passage, with Twitter blocking accounts in Germany containing “even the slightest whiff of hate speech.”[43]

One commentator said the clash between social media companies and the German government is “a fight about how much free speech a democracy can take.”[44]  And it is believed that free speech will be restricted even beyond the law’s requirements.[45]

One argument is that what sounds like hate speech to one person might sound merely like an opinion to someone else, and a society would have to ban a lot of speech in order to criminalize expressions of hate.[46]  Using hate speech laws to enforce social norms is a problem in a diverse society where people subscribe to different cultural and social norms.[47]

On the other hand, Maas argues a company like Facebook that earns billions from the internet “also has a social responsibility.”[48]

The law shifts the responsibility from courts to the social media companies to judge content’s legality .[49]  Critics say the law forces the companies to decide these cases “with no legal process or right of appeal for content creators.”[50]

Reporters Without Borders (in French, Reporters Sans Frontières, or RSF) says the law attempts to curb free speech abuses while doing nothing to guarantee that free speech remains protected:[51]

RSF has always opposed [regulation of] freedom of expression in an overly restrictive and even punitive manner.  If the democracies adopt this kind of measure, it would also serve as a pretext for the world’s press freedom predators to gag independent media, encourage self-censorship and impose even more draconian censorship.[52]

We will not know the effect of hate speech and fake news on the German elections until at least Sept. 24.  But the debate over how to balance free speech with other concerns will continue long after.

[1] Matt Stevens, After Charlottesville, Even Dating Apps Are Cracking Down on Hate, N.Y. Times (Aug. 24, 2017), https://www.nytimes.com/2017/08/24/technology/okcupid-christopher-cantwell.html?mcubz=0.

[2] David Ingram & Joseph Menn, Internet firms shift stance, move to exile white supremacists, Reuters (Aug. 16, 2017, 4:42 PM), https://www.reuters.com/article/us-virginia-protests-tech-idUSKCN1AW2L5.

[3] Id.; Stevens, supra note 1.

[4] Tracy Jan & Elizabeth Dwoskin, Silicon Valley escalates its war on white supremacy despite free speech concerns, Wash. Post (Aug. 16, 2017), https://www.washingtonpost.com/business/economy/silicon-valley-escalates-its-war-on-white-supremacy-despite-free-speech-concerns/2017/08/16/842771b8-829b-11e7-902a-2a9f2d808496_story.html?utm_term=.bb91c32082e4.

[5] Jessica Guynn, Twitter boots The Daily Stormer in latest eviction for neo-Nazi site, USA Today (Aug. 16, 2017, 2:49 PM), https://www.usatoday.com/story/tech/news/2017/08/16/twitter-boots-daily-stormer-latest-eviction-neo-nazi-site/573428001/ (last updated Aug. 16, 2017, 7:39 PM); Samuel Gibbs, Apple denounces neo-Nazis as Spotify bans ‘white power’ tracks, The Guardian (Aug. 17, 2017), https://www.theguardian.com/technology/2017/aug/17/apple-denounces-neo-nazis-as-spotify-bans-white-power-tracks; Ingram & Menn, supra note 2.

[6] Ingram & Menn, supra note 2.

[7] Jenna Amatulli, OkCupid Bans White Supremacist, Says ‘No Room For Hate’ On Site, Huffington Post (Aug. 17, 2017, 3:50 PM), http://www.huffingtonpost.com/entry/okcupid-bans-white-supremacist-says-no-room-for-hate-on-site_us_5995e470e4b01f6e801cf04e?ncid=inblnkushpmg00000009 (last updated Aug. 18, 2017).

[8] Stevens, supra note 1.

[9] Hayley Miller, PayPal Shuts Down Access for Richard Spencer, Other Right-Wing Extremists, Huffington Post (Aug. 16, 2017, 5:53 PM), http://www.huffingtonpost.com/entry/paypal-charlottesville-hate-groups_us_59949563e4b0acc593e4ac94 (last updated Aug. 17, 2017); Organizers and Leaders of Charlottesville’s Deadly Rally Raised Money With PayPal, S. Poverty Law Ctr. (Aug. 15, 2017), https://www.splcenter.org/hatewatch/2017/08/15/organizers-and-leaders-charlottesvilles-deadly-rally-raised-money-paypal.

[10] Melissa Eddy & Mark Scott, Delete Hate Speech or Pay Up, Germany Tells Social Media Companies, N.Y. Times (June 30, 2017), https://www.nytimes.com/2017/06/30/business/germany-facebook-google-twitter.html.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Erik Kirschbaum, German courts should go after fake news on Facebook now: minister, Reuters (Dec. 18, 2016, 6:47 AM), http://www.reuters.com/article/us-germany-facebook-fake/german-courts-should-go-after-fake-news-on-facebook-now-minister-idUSKBN1470CN.

[16] Nick Wallace, How Germany’s ‘hate speech’ law will put control of free speech in private hands, The Local (June 9, 2017, 2:05 PM), https://www.thelocal.de/20170609/how-the-german-hate-speech-law-will-put-control-of-free-speech-in-private-hands.

[17] Melissa Eddy & Mark Scott, Facebook and Twitter Could Face Fines in Germany Over Hate Speech Posts, N.Y. Times (Mar. 14, 2017), https://www.nytimes.com/2017/03/14/technology/germany-hate-speech-facebook-tech.html; Daisuke Wakabayashi & Mike Isaac, In Race Against Fake News, Google and Facebook Stroll to the Starting Line, N.Y. Times (Jan. 25, 2017), https://www.nytimes.com/2017/01/25/technology/google-facebook-fake-news.html.

[18] Melissa Eddy, Bild Apologizes for False Article on Sexual Assaults in Frankfurt by Migrants, N.Y. Times (Feb. 16, 2017), https://www.nytimes.com/2017/02/16/world/europe/bild-fake-story.html?_r=0.

[19] Facebook, Google, Twitter agree to delete hate speech in 24 hours: Germany, Reuters (Dec. 15, 2015), http://www.reuters.com/article/us-germany-internet-idUSKBN0TY27R20151215.

[20] Eddy & Scott, supra note 17.

[21] Id.; Reuters, supra note 19.

[22] Reuters, supra note 19.

[23] Eddy & Scott, supra note 17.

[24] Id.

[25] Id.

[26] Id.; Wakabayashi & Isaac, supra note 17.

[27] Eddy, supra note 18; Musa Okwonga, Fake News Meets German Racism, N.Y. Times (Feb. 23, 2017), https://www.nytimes.com/2017/02/23/opinion/fake-news-meets-german-racism.html; Rory Cellan-Jones, Fake news-  is Facebook moving fast enough?, BBC.com (Apr. 6, 2017), http://www.bbc.com/news/technology-39515319.

[28] Eddy & Scott, supra note 17; Kirschbaum, supra note 15.

[29] Eddy, supra note 18.

[30] Kirschbaum, supra note 15.

[31] Id.; Stefan Nicola, Carol Matlack, & Birgit Jennen, Germany Builds an Election Firewall to Fight Russian Hackers, Bloomberg (June 14, 2017, 12:01 AM), https://www.bloomberg.com/news/articles/2017-06-14/germany-builds-an-election-firewall-to-fight-russian-hackers; Constanze Stelzenmüller, The impact of Russian interference on Germany’s 2017 elections, Brookings (June 28, 2017), https://www.brookings.edu/testimonies/the-impact-of-russian-interference-on-germanys-2017-elections/; Simon Shuster, Russia Has Launched a Fake News War on Europe.  Now Germany is Fighting Back., Time (Aug. 9, 2017), http://time.com/4889471/germany-election-russia-fake-news-angela-merkel/.

[32] Jochen Bittner, Germany vs. Twitter, N.Y. Times (June 21, 2017), https://www.nytimes.com/2017/06/21/opinion/twitter-germany-free-speech.html; see also Shuster, supra note 31.

[33] Kirschbaum, supra note 15.

[34] Eddy & Scott, supra note 17.

[35] Amar Toor, Germany wants to fine Facebook over hate speech, raising fears of censorship, The Verge (June 23, 2017), https://www.theverge.com/2017/6/23/15852048/germany-hate-speech-facebook-twitter-fine-censorship.

[36] Eddy & Scott, supra note 10.

[37] Id.

[38] Joseph Nasr, Racist post fines on social media firms illegal: German parliamentary body, Reuters (June 14, 2017, 10:16 AM), http://www.reuters.com/article/us-germany-socialmedia-hatecrime-idUSKBN195227; see also Toor, supra note 35.

[39] Toor, supra note 35.

[40] Nasr, supra note 38; Eddy & Scott, supra note 10.

[41] Wallace, supra note 16; Jon Fingas, Germany backs fines for social networks that ignore hate speech, Engadget (Apr. 5, 2017), https://www.engadget.com/2017/04/05/germany-backs-fines-for-online-hate-speech/.

[42] Wallace, supra note 16; Fingas, supra note 41.

[43] Bittner, supra note 32.

[44] Heidi Tworek, How Germany Is Tackling Hate Speech, Foreign Affairs (May 16, 2017), https://www.foreignaffairs.com/articles/germany/2017-05-16/how-germany-tackling-hate-speech.

[45] Wallace, supra note 16.

[46] Id. (“The realms of hate speech and defamation are murky, and include vast expanses of legal grey areas that arguably incorporate the majority of potential cases.”); Flemming Rose, Germany’s Attack on Free Speech, Cato: Cato at Liberty (May 30, 2017, 11:44 AM), https://www.cato.org/blog/germanys-attack-free-speech.

[47] Rose, supra note 46.

[48] Kirschbaum, supra note 15.

[49] Eddy & Scott, supra note 10.

[50] Wallace, supra note 16 (“Whether one agrees or disagrees with laws that dictate what people can say or read, it should nevertheless be the job of the courts to establish when the law has been broken.  Using fines to transfer this task to private companies creates very troubling perverse incentives.”); see also Toor, supra 35 (mentioning that even a lawyer who filed a complaint against Facebook, who believes there is a need for government oversight of social media, has said free speech may be jeopardized if the law does not allow users to appeal Facebook’s decisions to remove flagged content).

[51] RSF fears censorship resulting from German law on online hate content, Reporters Without Borders (May 3, 2017), https://rsf.org/en/news/rsf-fears-censorship-resulting-german-law-online-hate-content.

[52] Id.