Germany Social Media Hate Speech Ban Having Global Impact

The Internet is a global platform. Should every country's laws apply to everyone using it?


The Atlantic (“Germany’s Attempt to Fix Facebook Is Backfiring“):

Both tweets were quickly flagged and deleted from the platform, as were a series of tweets from the satirical magazine Titanic parodying von Storch’s remarks, making them among the first casualties of Germany’s new Network Enforcement Act (NetzDG). The law, which went into full force on January 1, mandates that social-media companies delete what it calls “manifestly unlawful” posts on their platforms within 24 hours of being notified or risk facing heavy fines. (German law bans, for example, incitement to hatred, incitement to crime, and the spread of symbols belonging to unconstitutional groups.) Since the NetzDG took effect, it has been hailed as a success by some experts, and a “repressive regulation”—a blow to free speech—by others.

[….]

“I’m far from being a fan of the far right, but a lot of them are afraid that their postings are deleted because of their beliefs, not because of what they say,” said Jeorg Heidrich, a German internet lawyer and a longtime opponent of the regulation. He said that the NetzDG incentivizes social-media companies to “delete in doubt”—to remove any content that seems like it might be illegal—and he is one of many who have observed a general “chilling” of speech online and offline in Germany. “The NetzDG is on people’s minds,” he said. “Generally, people are more careful what to think, what to write. Lots of people are afraid of losing their accounts.”

[…]

And despite crying censorship against her, Weidel has also herself forced Facebook to restrict some content. Last month, Weidel earned praise for bringing Facebook “to its knees” in Germany after winning a court case against the company. She demanded that the platform make a post calling her a “Nazi swine” and viciously attacking her sexual orientation completely inaccessible to Facebook users in Germany, even those using a VPN. When she first reported the offensive comment to Facebook in late January, the company quickly made the post invisible to users with German IP addresses. But Weidel, who has a home in Switzerland, noticed that it was still viewable to users who were outside the country, or whose IP addresses made it seem like they were. (The NetzDG stipulates that social-media companies remove illegal posts that are visible to users inside Germany, but does not consider how this could impact the circulation of content across borders.) As a result of her petition, Facebook must ensure that individuals in Germany cannot use a VPN to access illegal content. The easiest way to do this would be to remove offensive posts completely; the court’s forthcoming written decision is expected to explain how the company should comply with the ruling.

[…]

Martin Munz, a White & Case attorney representing Facebook, called the offending comment “tasteless” but warned of the repercussions of the ruling: By compelling the social-media company to remove the post, it would, in effect, be enforcing German speech law internationally, even in places where the post’s content would be perfectly legal. Under the ruling, unless Facebook found a workaround, the post would be invisible in other countries too, just because it’s illegal in Germany. “Facebook is not a superjudge,” Munz said.

It is unlikely that Facebook would comply across its entire platform: The penalty would most likely be a fine in Germany if the post remains visible. But that hasn’t stopped the AfD from claiming that Weidel’s case exposed the pointlessness of trying to regulate online speech and the uselessness of the law.

Weidel’s case is the latest in a string of well-publicized incidents that highlight the shortcomings of the German legislation—as well as the thorny problems that could accompany any attempt to bring social-media platforms into step with national law. “It’s sad that today the AfD is making their point in the political sphere as well as in court,” Chan Jo Jun, a lawyer in Wurzburg whose work helped lay the groundwork for the NetzDG, told me. Despite evidence that overblocking is taking place just as Facebook warned it would, there is still broad support for the law, and lawmakers are currently considering revisions that would enable users to contest wrongfully deleted posts.

As noted many times over the years in this space, the American concept of free speech is much broader than it is even in other Western democracies. While I have a strong bias in favor of the American concept, I at least understand some of the cultural reasons why other societies—and in particular Germany—would privilege social harmony over individual absolutism on the issue. And, by and large, I believe the Germans, British, and others have the right to make those judgments vis-a-vis their own citizens.

But, of course, the normal standards of international sovereignty don’t work with global enterprises such as the Internet. As seen in the example above, for Facebook (or Google, or any other site) to comply with Germany’s law is, in effect, to give Germany governing authority over those companies. And not just Germany: each of the 195 countries on the planet would, theoretically, have the same authority. For that matter, so might hundreds of thousands of smaller polities whose national governments cede jurisdiction over these matters to localities.

In the olden days of yore—say, 1992—this sort of thing was relatively straightforward. If an American company trafficking in World War II memorabilia wished to do mail order business in Germany, they would be expected to familiarize themselves with and follow German law with respect to Nazi paraphernalia. If they violated German law, they would be subject to penalties according to established procedures under international law, treaty arrangements, and the like.

But the Internet is something altogether different. Facebook isn’t shipping anything to Germany. It’s simply hosting a social media platform to registered users, who can be from anywhere. Further, it’s serving that platform to anyone, anywhere, with a web browser and an Internet connection. It strikes me as completely unreasonable to expect them to comply with the laws of 195 different countries. And outrageous to, in effect, make the people of every country effectively subject to the laws of every other country.

Presumably, authoritarian states like Iran, North Korea, and China have more restrictive content policies than Germany, very much a free society, if one with a narrower interpretation of freedom of speech. What’s to stop those governments from restricting Facebook posts that criticize their leadership? Historically, they’ve done so by technical means—working to block those sites from being received in their countries. At least in the case of China, gives them some leverage to force companies wanting their sites available to that massive population to work to comply. But that’s a very different thing than what Germany is proposing.

Furthermore, while the likes of Facebook and Google have massive resources to respond to all these takedown requests, there’s no way that a smaller site could do that. Technically speaking, OTB is a social media platform. We don’t comment much on German politics here, much less engage in what reasonable people would consider hate speech. But it would be ludicrous to expect a Virginia-based weblog to comply with the laws of Berlin.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Dave Schuler says:

    I’m trying to figure out what would be left under a least common denominator rubric. It wouldn’t be much.

    It’s a bit like that old Soviet-era joke:

    Q: Is it true that there is freedom of speech in the Soviet Union, just like in the USA?
    A: In principle, yes. In the USA, you can stand in front of the White House in Washington, DC, and yell, “Down with Reagan!”, and you will not be punished. Equally, you can also stand in Red Square in Moscow and yell, “Down with Reagan!”, and you will not be punished.




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  2. Kit says:

    it would be ludicrous to expect a Virginia-based weblog to comply with the laws of Berlin.

    In practice, were there an issue, I believe this would simply involve Germany blocking OTB. If you found that bothersome, you would comply with the relevant laws.

    That said, I believe Germany is overreaching with the VPN requirement. Facebook seems to be making a good-faith effort, which German residents could circumvent. But the weakness is not due to the technical implementation of Facebook’s solution, but rather due to the nature of the internet itself. Here, Germany should simply block access to VPNs and deal with the resulting outcry.

    If Germany insists on squashing every offensive reference contained on the internet, then they will be forced to follow China’s example. I’d like to think that common sense will eventually win out.




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  3. PJ says:

    But, of course, the normal standards of international sovereignty don’t work with global enterprises such as the Internet. As seen in the example above, for Facebook (or Google, or any other site) to comply with Germany’s law is, in effect, to give Germany governing authority over those companies. And not just Germany: each of the 195 countries on the planet would, theoretically, have the same authority. For that matter, so might hundreds of thousands of smaller polities whose national governments cede jurisdiction over these matters to localities.

    So. Let say that there is a country where something is legal that is illegal in the US. Maybe it’s completely legal to copy and distribute copyrighted material. Should the US be allowed to block websites situated in that country that are sharing copyrighted material, again, legal in that country but reachable from the US? Should the US have the right to force these sites to follow US law if they wanted to be accessible in the US? Should the US have the right to demand that they block Americans from accessing the sites using VPNs?




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  4. James Joyner says:

    @PJ: First off, many US copyrights would also be protected under international law, so there are different considerations. Second, as noted in the OP, I think countries have a sovereign right to block access to various websites. I don’t think they have a right to demand that companies based elsewhere comply with their laws.




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  5. george says:

    I wonder how that’s going to work out in practice. For instance I assume the hooked cross, which is the Nazi symbol in the west, is banned in Germany. However, its also one of the oldest religious symbols in India, and a very positive one – so using it in India is completely accepted.

    If laws apply across borders, that means its both completely accepted in one part of the world, and banned in another. Do the laws then take context into account?




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  6. Dave Schuler says:

    @PJ:

    Maybe it’s completely legal to copy and distribute copyrighted material.

    That describes much of the world outside of the U. S., Canada, and Europe. Even where it’s not strictly legal the law against such distribution are frequently not enforced. In many places a DVD shop is a place where DVDs are copied for resale.




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  7. Gustopher says:

    Does this law affect what German citizens can see when they are outside of Germany?

    I don’t know how the VPN issues will be sorted out — the people inside Germany are effectively leaving Germany to view the content — but beyond that it doesn’t seem so horrible. Germany has the right to block services that do not comply with its laws, and if Facebook wants their content to appear in Germany, they can follow the German laws. Why is that complicated?

    And, yes, the same would apply to OTB.

    Has Germany begun reaching beyond their borders and fining companies that do business elsewhere? If so, that’s a problem. But until that time, this all seems fine.




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  8. James Joyner says:

    @Gustopher: From the quoted article:

    The law, which went into full force on January 1, mandates that social-media companies delete what it calls “manifestly unlawful” posts on their platforms within 24 hours of being notified or risk facing heavy fines.

    I’m not sure on what basis Germany would have jurisdiction to fine Facebook for actions taken by a company outside Germany but Facebook seems to think they have it. Also from the source:

    It is unlikely that Facebook would comply across its entire platform: The penalty would most likely be a fine in Germany if the post remains visible.




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  9. Kit says:

    @James Joyner: I’m not sure on what basis Germany would have jurisdiction to fine Facebook for actions taken by a company outside Germany

    On what basis does the US have jurisdiction to fine Japanese car makers, for example? On the basis that these companies do business in the country. Facebook is no different. It has offices in Germany. It takes money from German companies (advertising). It pays German taxes. I imagine that Facebook considers Germany to be a major market an so wishes to comply with the relevant laws.

    Up until there, I don’t think anyone disagrees. But the VPN issue creates problems An imperfect analogy would be a pizza place that agrees not to delivery pepperoni pizzas to a certain city. But the pizzas continue to arrive. And so with Facebook: it has promised not to deliver certain content to people in Germany, but the content continues to arrive. This is a problem.




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  10. James Joyner says:

    @Kit:

    Facebook is no different. It has offices in Germany. It takes money from German companies (advertising). It pays German taxes.

    That makes sense. I tend to think of Facebook as a relatively tiny California-based company that happens to have a major footprint. It’s not obvious to me why they need offices elsewhere but I don’t really understand the business that well.




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  11. de stijl says:

    @James Joyner:

    I’m not sure on what basis Germany would have jurisdiction to fine Facebook for actions taken by a company outside Germany but Facebook seems to think they have it.

    They could block Facebook (or whomever) for German based ISPs and German based internet addresses. This would cover all Germans except those that have the tech wherewithal to bypass that, but it would require folks to actively take steps to thwart the will of the German government if they wish to pursue this.

    This is both new and not new.

    Germany has banned certain Nazi iconography and explicit Nazi advocacy within Germany. Do you disagree that that is within their right?

    Just because modern tech has made it easier to promulgate these images and words accelerates this argument, but it does not alter the underlying principles.

    It is not novel that commercial enterprises have to alter their behavior based upon the laws of the local community. It happens all the time in the US for state tax issues.

    As I said earlier this is not new.

    Just because Facebook (and others) have a new powerful global distribution method does not undercut the global order on trade. They want it to, but it does not.

    Nations still exist. Nations can and will and do regulate trade. This is the basis of global trade .

    Just because it is now easier to ignore national trade regulations does not obviate sovereignty.

    Let’s make this very precise. If Germany demands that all companies doing business with Germans obey local laws regarding Nazi crap either they do and can can do business there, or they opt out and they don’t.

    This isn’t new. It’s a new distribution means, but the principle is well established.

    Facebook is not the de facto new One World Government. It is an optional tool we can choose to use or not, and how we use it may be altered by our local laws. Germany can limit it if they want to. They can outright ban it if they want to.




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  12. de stijl says:

    The internet makes us *want* to rewrite global trade agreements.

    Its existence does not invalidate pre-existing binding treaties or hand-shake deals just because it is.

    Regulation and diplomacy and trade negotiations are real things and they happen for real reasons.

    If a Finland based company offered a similar service and violated US laws how would US courts rule?




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  13. Kathy says:

    @PJ:

    So. Let say that there is a country where something is legal that is illegal in the US. Maybe it’s completely legal to copy and distribute copyrighted material. Should the US be allowed to block websites situated in that country that are sharing copyrighted material, again, legal in that country but reachable from the US?

    I suppose you could look up how the US handles casino and gambling websites located in other countries.




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  14. Tyrell says:

    They need to be more concerned about privacy and what happens to all the personal information.
    These measures limiting speech, however well intentioned, will drive more people to other sites.




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  15. Just nutha ignint cracker says:

    @Dave Schuler: When I was in Korea, about half of my students would buy their textbooks at the bok-sa jip, photocopy shop. The quality was quite high, in many cases copy shop books were more durable and easier to use because they were spiral bound.




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  16. Kathy says:

    @Just nutha ignint cracker:

    In high school teachers could assign segments of books found in the library. Since not all 30 students could check the book out, the library could set it aside in a designated “homework” area. There any student could ask for photocopies of the assigned segment.

    The library would also make copies of parts of any book, whether it could be checked out or was part of the reference section, and of periodicals, indices and abstracts as well. As long as the student, or teacher sometimes, paid for them.

    They wouldn’t copy a whole book, or a whole periodical. But I once saw a teacher ask for, and get, fully half of a novel copied. My guess is he asked different copy clerks for different halves of books.




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