Free Vs Hate Speech

The law that social media loves to hate

Wahlkampf FDP mit Lindner
Free that cell phone! The leader of the Free Democrats wants to topple a law targeting hate speech. Source: DPA

Christian Lindner couldn’t have been much clearer. Just a few days before Germany’s election on September 24, the leader of the pro-business Free Democrats vowed to challenge a law that fines social media sites like Facebook if they don’t remove hate speech from their platforms. “We are going to challenge. We have to challenge it, because the consequences are fatal,” he said.

The reasons for the FDP’s concerns are simple: By making social media sites responsible – and punishable – for hate speech, groups like Facebook are likely to err on the side of deleting borderline comments rather than face a fine. This, they argue, could undermine free speech.

But it’s an awkward position for a party leader who now hopes to enter a so-called “Jamaica” coalition government with Angela Merkel, whose party helped pass the very law that he’s talking about, and the left-leaning Greens. It’s just one more sign of how difficult the talks between these three political parties will be over forming a government in the next few months.

“October 1 was a bad day for freedom of speech on the web.”

Bernhard Rohleder, head of a German IT association

A number of business groups, particularly in the digital sphere, have sharply criticized the new hate-speech law. October 1 was “a bad day for freedom of speech on the web,” said Bernhard Rohleder, head of an association of German tech companies. He’s hoping the Free Democrats won’t be giving up the fight to repeal it any time soon. “If actions follow words, then the law will only be a brief interlude,” he said.

The FDP has no choice but to push forward in its opposition, even if it hopes to be part of government. The law “is an important topic in the area of citizens’ rights that we will raise in the [coalition] talks,” FDP general secretary Nicola Beer told Handelsblatt, though she stopped short off demanding the law be repealed altogether.

Mr. Lindner and Ms. Beer may get at least some of their way. Indeed, both Angela Merkel’s Christian Democratic party and the Greens have acknowledged there are serious problems with the law. The left-leaning Greens actually abstained when it was passed in parliament, though less so on principle. The law was “crafted so poorly that we couldn’t agree to it” said senior Greens politician Renate Künast.

The language, simply put, is too vague and leaves much open to (mis)interpretation. There isn’t even a clear definition of what constitutes hate speech. That has been left up to the companies to decide based on their own “community standards.” German authorities won’t evaluate the content of individual posts themselves, but will fine social media sites based on whether they are responding to complaints in a timely manner.

There are also fears that legal challenges could yet topple the law if the language isn’t tightened up. The right to free speech is firmly anchored in Germany’s constitution, though like many countries it makes exceptions for speech that incites violence or libels an individual. Others argue the law is unconstitutional because it takes the matter of deciding what speech is legal out of the government’s hands. Companies like Facebook have said they won’t challenge the law themselves and are working to implement it. They expect German citizens or politicians to challenge it instead.

“With 28 different ways of approaching this, we'll never achieve a digital union.”

Renate Künast, Green Party lawmaker

But the fact that many politicians agree the law is inartful doesn’t mean there’s an easy agreement between these three parties on how to reform it. Ms. Künast of the Greens sharply criticized the FDP for opposing the law outright. The Greens in their party platform went so far as to say it was right that social networks be held responsible for hate speech on their platforms. Ms. Beer, by contrast, said she still fears these companies will err towards deleting rather than protecting free speech, giving ammunition to far-right parties who say their right to speak up is being muzzled by the new law.

The devil, as always, will be in the details, and it could be up to the ever-pragmatic Ms. Merkel to find a political compromise. Thomas Jarzombek, a CDU parliamentarian responsible for digital affairs, said he’s confident there is a solution that would involve all three sides agreeing to “modifications” to the law in the short term. He emphasized that all sides agree with the basic principle: hate speech in the internet should be combated.

One solution could actually be for judicial authorities to have a greater say in what constitutes hate speech, since such authorities are already charged with prosecuting individuals that break the law. Even Mr. Lindner of the FDP has emphasized the primacy of the state when it comes to prosecuting crimes.

Another solution could be to push the issue higher up the ladder. The European Commission in Brussels has threatened to consider a similar law at the EU level if digital companies across the European Union don’t take further steps to crack down on hate speech. Such a pan-European initiative would be the preferred solution of the Greens. “With 28 different ways of approaching this, we’ll never achieve a digital union,” said Ms. Künast.

Even though the law has come into force on Sunday, the three parties have some time to iron out their differences. The law sees a three-month transition period where cooperation is essentially voluntary as companies build up their capacities to handle complaints. Only from the start of 2018 could social media sites actually be fined if they are not complying with complaints filed about hateful posts. That timing is ideal – nobody expects the three political parties to reach a coalition deal until the end of the year anyway.

Dietmar Neuerer and Dana Heide are political reporters for Handelsblatt based in Berlin. Christopher Cermak, an editor currently based in Washington DC, adapted this story for Handelsblatt Global. To contact the authors: neuerer@handelsblatt.com, heide@handelsblatt.com and cermak@handelsblatt.com

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