A few months ago, the German Bundestag adopted the Network Enforcement Act.[1] After taking effect in October 2017, the Network Enforcement Act, also known as the “Facebook Law,” fines social media companies for taking no action on hate speech.[2] The “Facebook Law” compels companies such as Facebook, Twitter, and YouTube to remove hate speech comments or content or face statutorily prescribed fines ranging from $5.7 million to $57 million.[3]

What does Germany’s new law require?

  • Social media companies must develop and implement a procedure for managing complaints about purportedly unlawful content, which must include taking immediate notice of the complaint. Providers are then obligated to remove or block access to “manifestly unlawful” content within 24 hours of receiving the complaint.
  • For content that is unlawful but not “manifestly unlawful,” providers have seven days to remove or block access to the unlawful content.
  • Providers that receive more than 100 complaints about unlawful content per year will be required to publish two annual reports written in German that detail the mechanisms in place to report unlawful content and the criteria used to evaluate the reported content, how the provider handled the complaints, and the number of complaints received.
  • Providers must also make monthly reviews of their processes for handling notices of unlawful content and immediately rectify any inadequacies in the process.
  • Providers face fines of up to $57 million for, among other things, failing to produce the bi-yearly reports if required, to develop a procedure for receiving and evaluating notices, to conduct the monthly reviews of their processes, or to eliminate inadequacies in the procedure.

Social advocacy groups and politicians on both the left and the right have issued statements opposing the “Facebook Law, commenting that the law places a serious restriction on online freedom of expression, thereby positioning social media companies in a role similar to prosecutors and judges by requiring them to determine what is and what is not hate speech. David Kaye, U.N. Special Rapporteur on Freedom of Expression, asked the German government to conduct a review on the compliance of the “Facebook Law” with international law and expressed his concerns about some of the few provisions of the “Facebook Law” and its consequences.[4] Christian Mihr, the Executive Director of the Reporters Without Borders-Germany expressed his deep concern about the “Facebook Law”: “Our worst fears have been realized, the German law on online hate speech is now serving as a model for non-democratic states to limit Internet debate,” referring to the Russian draft law of the online media.[5]

The adoption of the “Facebook Law” followed a series of actions of the European Union and Council of Europe aimed at combating hate speech. The European Commission has previously presented a list of measures suggesting how social media companies may permanently remove hate speech comments posted on their pages.[6] Given the influence of a country such as Germany in the European Union, and in Europe generally, it is logical to anticipate that similar actions might follow in other countries as well.

In a 2015 case before the European Court of Human Rights (ECtHR) in Strasbourg, the Court did not protect an online portal in Estonia, which faced fines from the Estonian courts after being accused by an Estonian company of free speech violations. The Court ruled that the Estonian State did not violate Article 10 of the European Convention on Human Rights.[7] The Court noted “that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression… However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. The Court further observed that “this characterization and analysis of the unlawful nature of the comments in question…is obviously based on the fact that the majority of the comments are, viewed on their face, tantamount to an incitement to hatred or to violence….” [8]  In conclusion, the Court found that Estonian courts placed a justified and proportionate restriction on the portal’s freedom of expression.

The ECtHR has issued several judgments related to hate speech, noting that hate speech constitutes an exceptionally relevant issue and that human rights defenders should put their effort into combating hate speech as negative phenomenon. The 2006 Erbakan v. Turkey decision reflects the essence of the ECtHR’s current position concerning hate speech: “[T]olerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principles, may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression, which spread, incite, promote or justify hatred based on intolerance.”[9]

The European Commission against Racism and Intolerance (ECRI),[10] another important mechanism for the protection of human rights in Europe, is dealing more and more seriously with the fight against hate speech. The ECRI’s General Policy Recommendation No.15, among others, recommended to its forty-seven Member States to seek to identify the conditions conducive to the use of hate speech as a phenomenon and the different forms it takes. Furthermore, the recommendations indicated that the Members States measure the harm that hate speech causes by developing reliable tools, and ensuring that there are public authorities designated to use these tools properly, in order to fight the dissemination of hate speech, through a continuous monitoring.[11]

The United States differs from Europe on its approach to hate speech, although both value the freedom of expression as a core value of the democracy. The US Constitution’s First Amendment provides stronger free speech protections than those of most European democracies.[12] In Europe, there is no general First Amendment exception, which allows the government to punish “hate speech” that denigrates people based on their identity, although Germany makes an exception from this.[13] According to Ken White, a First Amendment litigator, things that are referred to as “hate speech” in the US may occasionally fall into an existing First Amendment exception: a racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. However, “hate speech,” generally receives broad constitutional protections in the US.[14]

Another example that highlights theses different approaches to free speech limitations is the issue of defamation, which is regarded as Criminal Offence in most European countries; [15] this is not the case in US. This adds to the more restrictive European approach that I argued above, it is another mean of restriction of freedom of expression by criminalizing various types of slander (libel and defamation), since defamatory “fake news” are often regarded to be close to hate speech.

The emergence and exponential growth of technological advances in social media engagement in particular have created unprecedented challenges, in both the US and Europe, for how to navigate free speech issues. Social media, and the fast flow of information confused with “fake news” and hate propaganda, have made it even more difficult for policymakers, legal practitioners, and individual citizens around the world to follow and to distinguish freedom of expression from hate speech.

There is no doubt that serious institutional measures should be addressed on both sides of the Atlantic, and perhaps greater trans-Atlantic dialogue and cooperation is needed to address this evolving issue, because in the end, the new law in Germany will result in the fines for mainly American companies.

[1] The German Bundestag constitutional and legislative body at the federal level in Germany.

[2] Official German version available at: https://cdn.netzpolitik.org/wp-upload/2017/06/Synopse-NetzDG-final.pdf. English version available at: https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/NetzDG_engl.pdf;jsessionid=F3686C36773D5F5831D70F32DDB50CDD.1_cid289?__blob=publicationFile&v=2

[3] https://www.theguardian.com/media/2017/jun/30/germany-approves-plans-to-fine-social-media-firms-up-to-50m

[4] Read the full statement of the U.N. Special Rapporteur on Freedom of Expression: http://www.ohchr.org/Documents/Issues/Opinion/Legislation/OL-DEU-1-2017.pdf

[5] https://rsf.org/en/news/russian-bill-copy-and-paste-germanys-hate-speech-law

[6] European Commission Code of Conduct on countering Illegal online hate speech: http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf

[7] Article 10 of the European Convention on Human Rights protects freedom of expression.

[8] European Court of Human Rights factsheet on hate speech, June 2016, Case: Delfi v. Estonia, http://www.echr.coe.int/Documents/FS_Hate_speech_ENG.pdf , p.13.

[9] ECtHR, Appl. No. 59405/00, Erbakan v. Turkey, Judgement of the Court of 6 July 2006, §56.

[10] A monitoring body of the Council of Europe, read more about the work of ECRI here: https://www.coe.int/t/dghl/monitoring/ecri/default_en.asp

[11] European Commission against racism and intolerance, General Policy Recommendation no.5 on Combating Hate Speech, 2015, p.5, https://www.coe.int/t/dghl/monitoring/ecri/activities/GPR/EN/Recommendation_N15/REC-15-2016-015-ENG.pdf

[12] The US Constitution’s First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.

[13] Chapter 130 of the Criminal Code foresees imprisonment or fines for hate speech presentations through radio, media services or telecommunication services. See the German Criminal Code here: https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html

[14] Take a look at his piece for Los Angeles Times “Actually hate speech is protected speech”, http://www.latimes.com/opinion/op-ed/la-oe-white-first-amendment-slogans-20170608-story.html

[15] See a map of countries that have defamation as a Criminal Offence: http://legaldb.freemedia.at/defamation-laws-in-europe/