German hate speech crackdown sparks censorship fears

By Janosch Delcker

BERLIN — Germany is cracking down on hate speech online amid a rise in right-wing extremism, but critics warn that civil liberties will end up as collateral damage.

Hours before a far-right extremist shot nine people dead at two hookah bars in central Germany on Wednesday, Chancellor Angela Merkel’s government passed the first of two laws to further toughen its rules — already considered some of the world's strictest — governing speech online.

“Hate crimes should finally end up where they belong — in court,” said the Social Democrat Justice Minister Christine Lambrecht after the bill was approved by the government.

The draft law will force social media companies to proactively report potentially criminal content on their platforms to law enforcement.

While Lambrecht's government argues the measures are needed to counter a rise in right-wing extremism proliferating online, however, an unlikely alliance of opponents are sounding the alarm on potential damages to civil liberties.

“There is no question that our society has a problem with right-wing extremism and hate speech," said Elisabeth Niekrenz of Berlin-based civil liberties organization Digitale Gesellschaft (Digital Society), "which deeply worries me. But the measures presented [by Lambrecht] infringe people's right to informational self-determination, open the door for more surveillance, grant law enforcement more powers to intervene and allow for more data collection.”

Niekrenz’s organization is one of 13 signatories of an open letter to Lambrecht earlier this month which called the new hate speech rules "an enormous danger to civil liberties." Other signatories include Germany’s journalists' union, the German Informatics Society, as well as lobbying organizations for the tech industry such as the Association of the Internet Industry (eco), which counts Facebook, Google and Twitter among its members.

Niekrenz added that while her organization's interests were opposed to those of Big Tech “in many areas”, for example on the handling of user data, "it’s fair to say that here, the big platforms are pushed into a peculiar role in which they're supposed to play deputy sheriffs and have to decide what’s lawful and what isn’t.”

"This doesn’t bother me because I feel sorry for Facebook or Google having to do the work, but because I am concerned about the societal consequences,” she added.

The German justice ministry denied a request to reply to their criticism, citing a policy of not commenting on open letters.

Berlin's hate speech law also provides a major test case of cracking down on hate speech online at a time when the European Commission is examining new rules for policing content online — and looking closely at how  Germany, France and the United Kingdom are handling the matter.

The uproar in Germany underscores how challenging the regulation of online content is for democratic countries. Critics warn in particular that well-meaning efforts in Europe could provide a template for censorship of political opponents in autocratic countries.

Lambrecht hinted, however, that Berlin's rulebook could serve as a role model for other EU countries. Following a meeting earlier this month with colleagues from the Netherlands, Luxembourg, France, Spain and Italy, she said that Germany will push for cooperation and “new European rules” to fight online hate speech during its rotating presidency of the EU starting this summer.

“In many European countries, populists and extremists are rioting against democracy, dissenters and minorities,” she said. “The platforms are the same, and the racist and anti-Semitic messages are similar.”

Germany's efforts to snuff out online hate speech passed a milestone in the summer of 2017, when parliament passed its Network Enforcement Act (NetzDG).

The law forces large social media platforms to delete potential criminal content, sometimes within as little as 24 hours. It also requires them to provide law enforcement agencies with user data in certain cases.

From its onset, however, critics warned that the pioneering rulebook — the first major effect of a Western democracy to reign in hate speech online — had weaknesses.

That’s largely because fighting "hate speech" is easier said than done, legal experts caution, not least because "hate" is not, per se, considered a criminal offense. For every case of a reported "hate speech," prosecutors need to decide whether and under which law it constitutes a criminal offense.

While in some cases, German criminal law is straightforward — leaving no doubt, for example, that denying the Holocaust is a crime — it's more ambiguous in other areas. Deciding if a post qualifies as Volksverhetzung (incitement of hatred) is one such instance.

NetzDG has so far primarily made sure that illegal content is deleted at a higher rate than in other countries, but it does little to hold the authors of harmful content legally accountable.

This is what Justice Minister Lambrecht aims to tackle with this week's law, which forces platforms to report illegal content themselves. The bill still needs to pass both chambers of parliament before taking effect.

A second law, which is in an earlier stage, aims to make it easier for users to report illegal content and challenge content decisions by internet platforms. It also requires companies to disclose more information than was previously required in their biannual transparency reports, including details about which groups of people are particularly affected by hate speech or how companies are using artificial intelligence to detect harmful content.

The latter two points are especially worrying for civil liberties advocates like Elisabeth Niekrenz.

She said it would lead to an increase in sensitive data being shared and stored by platforms, and encourage companies to automate content moderation.

Google, Facebook and Twitter declined to comment for this article.