Facebook, Twitter, and other web companies are facing increased pressure to remove hate speech, fake news, and other content in Europe, where lawmakers are considering new measures that critics say could infringe on freedom of speech.
In the wake of recent terrorist attacks in Britain, Prime Minister Theresa May and French President Emmanuel Macron said last week they are considering imposing fines on social media companies that “fail to take action” against terrorist propaganda and other violent content. The European Union, meanwhile, recently moved closer to passing regulations that would require social media companies to block any videos containing hate speech or incitements to terrorism.
But nowhere is the pressure more acute than in Germany, where lawmakers are racing to pass new legislation that would impose fines of up to €50 million ($55.8 million) on tech companies that fail to remove hate speech, incitements to violence, and other “obviously illegal” content from their platforms. Companies would have to remove clearly illegal content within 24 hours; they would have up to one week to decide on cases that are less clear.
The Social Networks Enforcement Law, first announced in March by Justice Minister Heiko Maas, aims to hold social media companies more accountable for the content published on their sites, and to ensure they are in accordance with Germany’s strict laws on hate speech and defamation. But the bill has drawn vehement criticism from rights groups, lawyers, and a diverse mix of politicians, who say such steep financial penalties could incentivize tech companies to censor legal speech out of caution. Critics also claim that the proposed legislation — known as the “Facebook Law” — would give social media companies undue power to determine what people can say online, effectively outsourcing decisions that should be taken by the justice system.
“a wholesale privatization of freedom of expression”
Joe McNamee, executive director of the Brussels-based digital rights group EDRi, says the German law would compel social media companies “to shoot first and don’t ask questions later in relation to anything that’s reported to them.” He also believes it would move Europe closer to “a wholesale privatization of freedom of expression,” with “large internet companies deciding what they want the public the discourse to be, and how much restriction… to impose to have legal certainty.”
Maas defended the bill during parliamentary debate last month, describing it as a necessary measure to curb the spread of illegal speech. "The point of the proposed legislation is that statements that violate the law must be deleted," Maas said, according to Deutsche Welle. "These are not examples of freedom of speech. They're attacks on freedom of speech. The worst danger to freedom of speech is a situation where threats go unpunished.”
Maas has been a particularly outspoken critic of Facebook, claiming that the social network should be treated as a media company, which would make it legally liable for hate speech, defamation, and other content published to its platform. The justice minister also criticized Facebook for failing to remove flagged hate speech in 2015, amid rising anti-migrant protests violence across Germany; prosecutors in Hamburg opened an investigation into Facebook’s European head later that year for “ignoring racist posts.”
Facebook, Twitter, and Google agreed to remove hate speech from their platforms within 24 hours, under an agreement with the German government announced in December 2015. But a 2017 report commissioned by the Justice Ministry found that the companies were still failing to meet their obligations. Twitter removed just 1 percent of hate speech flagged by its users, the report said, while Facebook took down 39 percent. The companies struck a similar agreement with the EU in May 2016, and although Facebook has made progress in reviewing and removing illegal material, the European Commission said in a report last month that Twitter and YouTube are still failing to adhere to the voluntary accord.
Facebook and Google have also taken steps to combat fake news in Europe, amid concerns that misleading content could influence elections. Facebook began labeling fake news in Germany and France earlier this year, and it partnered with Correctiv, a Berlin-based nonprofit, to help fact-check dubious news stories.
Facebook pushed back against Germany’s proposed law last month, saying in a statement that it “provides an incentive to delete content that is not clearly illegal when social networks face such a disproportionate threat of fines.”
“It would have the effect of transferring responsibility for complex legal decisions from public authorities to private companies,” the statement continues. “And several legal experts have assessed the draft law as being against the German constitution and non-compliant with EU law.”
When reached for comment, a Twitter spokesperson referred to a previous statement from Karen White, head of public policy in Europe, following the release of the European Commission’s report. “Over the past six months, we've introduced a host of new tools and features to improve Twitter for everyone,” the statement reads, in part. “We’ve also improved the in-app reporting process for our users and we continue to review and iterate on our policies and their enforcement. Our work will never be ‘done.’”
“You can’t just delete what these people are thinking.”
Chan-jo Jun, an activist German lawyer who has filed several high-profile lawsuits against Facebook, says he’s “ambivalent” about the draft law because it lacks what he sees as a crucial component. In a phone interview, Jun said the law should allow for users to appeal Facebook’s decision to remove flagged content, and to force the company to “hear the voice of the person whose post has been deleted.” Free speech may be jeopardized without such a mechanism, he said, though he believes there is still a need for government oversight of social media.
“If we think criminals should be prosecuted on the internet, then we have to make sure that German law applies on the internet, as well,” Jun said, “and that it is not only being ruled by community standards from Facebook.”
Maas is looking to pass the bill before the Bundestag’s legislative period closes at the end of June — the last chance to do so before national elections in September — though it faces opposition from a broad range of politicians. Lawmakers from the far-left and far-right have strongly criticized the bill, as have organizations such as Reporters Without Borders. McNamee says that even if the law does pass, it likely will not hold up to legal challenges in Germany or Europe. In a non-binding ruling handed down last week, a German parliamentary body determined that the bill is illegal because it infringes on free speech and does not clearly define illegal content.
Maas has expressed support for Europe-wide laws on hate speech and fake news, though EU regulators have traditionally favored a more self-regulatory approach to policing online content. Yet new EU data protection rules slated to go into effect next May point to a more aggressive stance. Under the regulations, technology companies found to violate consumer privacy could face fines of up to 4 percent of their global turnover. (Facebook earned nearly $28 billion in global revenue in 2016.)
“Up until now, one could argue that large tech companies have been able to, by and large, get away with saying, ‘oh, it’s all technology and it’s all very difficult,’” says Joss Wright, a research fellow at the Oxford Internet Institute. Lately, however, European regulators have shown an increased “willingness to take on tech companies directly,” Wright adds.
In Germany, however, some activists worry that lawmakers who support the bill may be looking to score political points ahead of this year’s elections, while ignoring deeper societal issues that have allowed hate speech to propagate.
“We fear that after this law comes to action, the whole debate is over for the politicians, and we are just right at the beginning,” says Johannes Baldauf of the Amadeu Antonio Foundation, a Berlin-based NGO that tracks and combats hate speech and extremism. Baldauf, who leads a project tracking hate speech online, says “there has to be some sort of legislation” to curb illegal speech, though he believes it should be coupled with public awareness campaigns and public debates about what drives racism and xenophobia.
“You can’t just change the mind of the people by proposing a law,” Baldauf says. “And you can’t just delete what these people are thinking.”