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June 30, 2017

German Lawmakers Pass Restriction on Free Speech

By Susan Corke and Emma Bernstein

In a blow to free speech, German lawmakers today passed a bill requiring social media companies to remove illegal content, including hate speech. Sites with more than two million users could face fines of up to €50 million.

Over the last two years, as Germany has welcomed more a million refugees, the debate over migration has played out on social media, and there has been an increase in racist and anti-refugee comments. And with elections coming up in September, German lawmakers are increasingly concerned with the role of social media in the electoral process, although this bill will not take effect till October.

The bill requires social media companies to remove obviously illegal content within 24 hours. (Companies have seven days to deal with more ambiguous content.) Because of the threat of hefty fines and quick timeline for removal, social media companies would be incentivized to remove content first, then review later. Add this dynamic to the lack of appeals process afforded by social media companies, and it becomes likely that legal content would be wrongfully removed. This is a threat to free expression.

Facebook has argued that it’s not its job to be carrying out “state responsibilities”—and it’s correct. Governments shouldn’t ask, much less require, private companies to make determinations about the legality of content.

Although Justice Minister Heiko Maas supports the bill and believes it will deter acts of hate both on and offline, eight out of ten experts who testified at hearing for the bill in late June, argued that the bill was technically unconstitutional and would, “not withstand constitutional scrutiny.” The U.N. Special Rapportuer on Freedom of Expression, David Kaye, believes that the vague and ambiguous language of the bill could force companies to remove content before it could be legally deemed hate speech.

Finally, efforts by the German government to silence those who propagate hate could give other more repressive regimes the idea that censorship is acceptable and might lead to the silencing of dissent. Human rights advocates in countries such as Turkey, Russia, and Kyrgyzstan have made this very point. Many countries view Germany as a leader in the fight against extremism and for human rights, especially with their recent welcoming of refugees. It is for this reason that Germany’s social media law might set a disturbing precedent as regimes cite it to try to justify similar-but-worse restrictions of free speech.

In order to remain a champion for human rights and basic human freedoms, the German government should combat online hate speech in a way that does not create opportunities for repressing free expression and emboldening repressive regimes.