May 3, 2017 – Reporters Without Borders (RSF) is concerned about a draft law in Germany that would impose massive fines on social networks that fail to quickly remove content of a “criminal” nature. RSF fears that the proposed law, which has been approved by the cabinet, could lead to excessive content removal and censorship and could set a precedent at the European level.
To avoid heavy fines, social networks would be tempted to delete content, possibly a great deal of content, thereby restricting free speech and obstructing freedom of information for users of social networks, which are now one of the main methods of accessing news and information.
Under the proposed law, approved by the federal cabinet on 5 April, leading social networks such as Facebook, Twitter and YouTube would face fines of up to 50 million euros for failing to remove hate speech or other forms of “criminal” content promptly.
The deadline for deleting “criminal” content would be seven days, while the deadline for “manifestly criminal” content would be only 24 hours. The distinction is not clear and would place social networks under a great deal of pressures to take quick decisions or take the consequences.
Censor more to pay less
“RSF opposes this bill, which would just contribute to the trend to privatize censorship by delegating the duties of judges to commercial online platforms and making them decide where or not content should be deleted, as if the Internet giants can replace independent and impartial courts,” said Elodie Vialle, the head of RSF’s Journalism and Technology desk.
RSF therefore fears that this law would lead to excessive censorship, inasmuch as social networks would be tempted to suppress more content in order to pay fewer fines, and this of course is incompatible with the prescriptions of international human rights treaties.
RSF is also concerned about the vagueness of the proposed law’s provisions on censorship mechanisms and criteria. Determining whether or not an online post complies with the law requires detailed legal expertise and involves a process that is complex.
Bans to including defaming the German state or president
In practice, when a user filed a complaint about content, social networks with more than 2 million users in Germany would have to decide very quickly whether it was “criminal” or “manifestly criminal” and therefore whether it needed to be removed and within what deadline.The proposed law refrains from using the terms “fake news” or “hate speech,” and instead refers to Germany’s criminal code, citing a list of 23 crimes that include “defaming the president (…) the state or its symbols,” “inciting hatred” and “training, participating in, recruiting for and supporting a terrorist organization” as grounds for censoring online content.
Federal justice minister Heiko Maas said hate speech and fake news pose a grave danger to the democratic discourse in Germany, especially when they go viral.
While it is understandable that the government is seeking solutions to these problems, RSF thinks this proposed law is much too broad, affecting not only social networks but also many other interactive sites such as email services (Gmail, ProtonMail and so on) and even cloud storage and file-sharing services such as Dropbox.
Stop the legislative process
“RSF calls on the German government to stop this legislative process, inasmuch as this law poses a grave threat to freedom of information and expression,” said Christian Mihr, the executive director of RSF Germany.
It could also set a precedent at the European level at a time when other countries are considering the possibility of criminalizing hate speech and fake news. In the United Kingdom, a parliamentary report released on 1 May cites the German example and urges the government to adopt a system of graduated penalties, including large fines, for social network that do not act with sufficient speed to remove content inciting hatred.
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Under a proposed law submitted to the Italian parliament in February, disseminating “false, exaggerated or tendentious” information would be punishable by fines of up to 5,000 euros and even jail terms. In France, a senator has submitted an anti-fake news bill although article 27 of France’s 1881 press law already prohibits the publication of false news.
Holding social networks responsible while protecting free speech
RSF is aware of the dangers posed by fake news, hate speech and other forms of incitement to violence, especially when their spread and impact is multiplied by social networks whose main aim is to keep each user connected to their platform for as long as possible. Other lines of thought are developing. The idea of making the social networks themselves responsible is not new within the European Union.
The European Commission and the Internet giants (Facebook, Google, Twitter and Microsoft) agreed on a joint good conduct code for combatting online hate content in May 2016. It was not however binding. The proposed German law would of course be binding and goes much further, trying to check free speech abuses while at the same time doing nothing to ensure that free speech is protected.
RSF has always opposed repressive measures that regulate 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.
Germany is ranked 16th out of 180 countries in RSF’s 2017 World Press Freedom Index.
For more on this subject, read the analysis of the German draft law by the NGO Article 19.