NetzDG: Regulating Social Media or Censoring Political Debate | Ireland EU

NetzDG: Regulating Social Media or Censoring Political Debate | Ireland EU
NetzDG: Regulating Social Media or Censoring Political Debate

NetzDG: Regulating Social Media or Censoring Political Debate

What’s in a Word

Not too many German words have ever trended during the Information Age. The Germans have only themselves to blame for this: their words are ridiculously long to be even read, let alone remembered by anyone other than a native speaker. So long, in fact, that – as Mark Twain once quipped – some of them have their own perspective. Indeed, the 27-lettered word (yeah, we had to count too) we are interested in offers a fresh and new perspective about an old and thorny issue. That’s one of the reasons why, by the end of this year, you will be able to pronounce “Netzwerkdurchsetzungsgesetz” as swiftly and as trippingly as “network enforcement law”. But, for now, we’ll save you the trouble from skipping a word every other sentence, and we’ll use the abbreviated form “NetzDG”. Because, that one is already trending. And there’s more than one reason why.

The Problems

The World: An Overview

On January 14, 2010, Phoebe Prince, a fifteen-year-old girl who had recently moved from Ireland to the United States, was found hanging in the stairwell leading to the second floor of her family’s apartment. Subsequent research uncovered that she decided to commit the suicide after months of insults and verbal assaults had evolved into relentless and constant cyberbullying. It seems that Phoebe Prince found a way to deal with the former, but it was impossible to escape from the latter.

Six years later, an Italian 31-year old woman named Tiziana Cantone, decided to end her life after being forced to deal with a similar problem. After an explicit private video of her shared on WhatsApp went viral, screenshots and memes from the video began circulating on social networks, often featuring her full name in addition to a clear image of her face. Cantone filed legal requests with Yahoo Italy, Facebook Ireland, Google, and YouTube and even won a “right to be forgotten” case against Facebook, but was still ordered to pay €20,000 in legal costs from the case. She committed suicide shortly afterwards on September 13, 2016.

Just few months before Cantone killed herself because of social media taunting, a French teenager named Océane Ebem had become the first person to live-stream her own suicide. Online incitement to suicide has recently become a real cause for concern in Russia where “social media death groups” have triggered a 57 percent increase in teenage suicides.

Propagating murder is another widespread problem. For example, just few days after Gina Miller won a legal case against the UK government’s intention to start the Brexit process without consulting the Parliament, Rhodri Phillips, the 4th Viscount St Davis, offered on Facebook “£5,000 for the first person to ‘accidentally’ run over this bloody troublesome first-generation immigrant” – referring, of course, to Miller. Responding to a surge of similar calls published on social media sites (there’s a 20% rise in reports of hate crime during the first quarter of 2017), Alison Saunders, UK’s Director of Public Prosecutions, announced plans to treat “online hate crimes just as seriously as those experienced face to face”.

“Hate is hate,” she added in a column, “and online abusers must be dealt harshly.”

Germany: Stats Don’t Lie

The same words could have been written by quite a few German politicians and lawmakers. Instead, they decided to be a bit more aggressive and urgent on the subject – and have already passed a law which can be easily summarized in Saunders’ above-quoted sentence.

It all started in 2015 when Germany’s Federal Ministry of Justice and Consumer Protection realized that the content removal teams employed by social media sites are insufficient to deal with hate crimes and criminal incitements.

Two subsequent studies conducted by jugendschutz.net, a transnational centre for internet protection for young people, found out that even though YouTube deleted 90% of the reported criminal content (over 82% within 1 day of the complaint), Facebook deleted or blocked merely 39 out of 100 posts reported by users (33 within a day); most questionably, Twitter deleted only 1% of the messages reported, none of which were deleted during the first 24 hours.

A doctoral dissertation defended at the University of Colorado at Boulder four years ago summarizes the seriousness of the underlying problem clearly:

“Many of the decisions made by the content removal teams at these organizations are not nearly as speech protective as the First Amendment and U.S. Supreme Court precedent on the subject would mandate. Thus, the current situation gives social media companies’ unprecedented power to control what videos, text, images, etc. users may or may not post or access on those social media sites.”

The Law

In a nutshell, recently (30 June) the German Parliament passed a law which takes away this power from social media companies, making them responsible for any third-party content they host on their websites, and subjecting them to rigorous fines of up to €50 million if they fail to remove “obviously illegal” content within 24 hours of it being reported.

The law, which will come into effect in October, applies to a somewhat broader category than “social media companies” in the strict sense of the word, extending to any money-making platform intended to allow users to share content with other users, but exempting providers which have fewer than 2 million registered users in Germany.

Under the new law, Facebook, YouTube, Twitter and similar sites will be required:

  • to maintain a procedure for handling complaints and requests for deletion;
  • to delete “obviously illegal”/”manifestly unlawful” content within a day (24 hours), and assess content which is not obviously unlawful within a week (7 days);
  • to publish (in case of more than 100 complaints a year) two German-language reports annually, detailing the procedure for handling complaints and the criteria employed in evaluating them properly;
  • to make monthly reviews of the complaint procedures and “immediately” correct any possible shortcomings;
  • to pay fines of up to €50 million for failing to adhere to one or more of the above listed responsibilities.

In addition, the law includes a very broad definition of the term “unlawful” (referring the reader to sections of the German Criminal Code), describing as such any content which may incite to crime, which violates intimate privacy by taking photographs, which suggests or calls for the formation of criminal/terrorist organizations, or which disseminates depictions of violence.

The Criticism

NetzDG is one of the first laws which has put this kind of pressure on social media sites. It’s also one of the harshest, surpassing even the sanctions proposed by the General Data Protection Regulation. Heiko Maas, Germany’s Minister of Justice who proposed the law, has expressed his belief that NetzDG is the best way to combat hate speech and fake news:

“With this law, we put an end to the verbal law of the jungle on the internet and protect the freedom of expression for all. We are ensuring that everyone can express their opinion freely, without being insulted or threatened. That is not a limitation, but a prerequisite for freedom of expression.”

However, he seems to be one of the very few who believes this. IT experts, scientists, writers, journalists, lawyers, privacy activists and civil rights campaigners are all but unanimous in their opinion that NetzDG is a shoddily penned law which, instead of solving the current problems, may result in causing few new ones.

The most serious one is the unrealistically tight time limits, which – critics warn – will lead to accidental censorship. David Kaye, the U.N. special rapporteur on freedom of expression, has already communicated his concerns to the German government:

“With these 24 hour and seven day deadlines – if you are a company you are going to want avoid fines and bad public branding of your platform. If there is a complaint about a post you are just going to take it down. What is in it for you to leave it up? I think the result is likely to be greater censorship.”

Echoing the concern, a famous German journalist has described the law as being picked up straight from the pages of Orwell’s dystopian novel 1984, with another one blaming Heiko Maas of thinking less about hate speech and more about how to silence his political opponents.

Social media networks have voiced similar opinions. In a statement, Facebook has clarified that it considers the law both too rushed and too one-sided solution. In an interview with BBC, an unnamed Facebook spokesperson has added that:

“The law is not the right way to fight hate speech online. It provides an incentive to delete content that is not clearly illegal and would have the effect of transferring responsibility for complex legal decisions from public authorities to private companies. Several legal experts have assessed the draft law as being against the German constitution and non-compliant with EU law. Facebook is committed to working in partnership with governments and civil society on solutions that would have made this law unnecessary.”

Conclusion

“Unnecessary” may be an unfortunate choice of word: hate crimes and fake news are on the rise for a while now and social media sites have done nothing to stop this. On the contrary, in fact: they have misused – time and time again – phrases and concepts such as “freedom of speech” and “censorship” to justify their lack of interest to solve the problems. Why shouldn’t they? To them, solving the problems means losing valuable customers. Not solving them means recycling the successful formula which has guaranteed them users and content for years. (Just think of it this way: a single instance of a racist remark or a fake information generates hundreds and hundreds of replies debating its justification).

Consequently, NetzDG is more than a necessary regulation. Its only problem is that it’s too vague and misguided. The law doesn’t include a clear explanation of what “obviously illegal”/”manifestly unlawful” means and remains mute on subjects such as privacy or accidental censorship. The last one is especially tricky, since companies are advised to delete/block criminal content based on reports which may come from anywhere and which may sometimes be unsupported. Companies, however, are put in a situation where deleting an ambiguous reported message will always be a better solution than risking being sanctioned for not deleting it. And who has time to go to court for every erroneously deleted post or tweet!

Even if grounded in good intentions, Heiko Maas’ plan to combat hate crime may backfire. In fact, some say that it already has: Russia has copy/pasted it in record time, and a UK parliamentary report has already cited the German example as the right way to go. However, we’re still not sure if – and how – the law will work in practice.

“Our worst fears have been realized,” says Christian Mihr, Director of Reporters Without Borders Germany. “The German law on online hate speech is now serving as a model for non-democratic states to limit Internet debate.”

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