German Social Media Regulation Inspires Repressive Regimes
By Adam Nagy
Passed on June 30, a new German hate speech law imposes heavy fines on social media companies that fail to swiftly remove prohibited content. Its proponents have lauded the bill as effectively combating hate speech while protecting freedom of expression for all on the internet.
In fact, it may have the opposite effect on an international scale.
Critics of the German law—which civil society organizations, the affected companies, independent experts, and other groups have opposed—argue that it will result in sweeping censorship. Social media platforms, they say, will err on the side of caution and remove acceptable content rather than remain liable and risk hefty fines. Furthermore, the privatized enforcement of hate speech law will allow censorship without procedural protections—namely, the right to due process, an appeal, and laws that are decided through democratic processes.
Although it’s an open question whether the law will survive the scrutiny of Germany’s Constitutional Court, less democratic states will be emboldened by the German model. Russia has already demonstrated this effect.
The ink had hardly dried on Germany’s law before the Russian Duma advanced an almost identical bill. The move validated concerns from various human rights advocates that passage of the German law would inspire similar statutes in repressive regimes, thereby providing a veneer of legitimacy to authoritarians seeking to further limit free expression online.
Repressive regimes use numerous tools to quell dissent and punish political opponents through the courts. In Russia, draconian statutory restrictions on speech, both online and offline, have greatly expanded in the wake of mass protests that began in 2011.
But for all the legislation passed to crack down on dissent, repressive regimes have yet to gain any semblance of legitimacy. Russian censorship laws are routinely condemned by democracies around the world, and are scrutinized by regional human rights bodies such as the European Court of Human Rights.
Laws that hold internet platforms liable for the actions of their users allow repressive regimes to deflect scrutiny and gain legitimacy. Under the constant threat of enormous fines or a ban, companies are left to do the dirty work of censorship; meanwhile, the authorities keep their hands clean. The highly politicized, vague, and broad definitions of illegal speech ensures that companies can be forced into line at any point if governments decide they don’t like some particular content.
The passage of these laws in a country like Germany—an international leader in both human rights and combating extremism—fractures a united front on this issue, making it harder for social media companies to lobby against such laws. It also allows politicians to accuse their external critics of holding their country to an unfair double standard.
Passing such laws in a country like Germany—an international leader in both human rights and combating extremism—fractures a united front on this issue, making it harder for social media companies to lobby against restrictive laws. It also allows politicians to accuse their external critics of holding their country to an unfair double standard.
Almost a century ago, Supreme Court Justice Louis Brandeis wrote: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”
The internet has changed the way we communicate, but it has not changed this golden principle. In an open society, prohibitions on speech should remain a final, not a first, resort.
Censorship will not change hearts and minds. If anything, it breeds feelings of victimization that reinforce extreme ideologies and hatred. A long-term strategy against extremism and hate online will require attacking its symptoms and its root causes through a myriad of technological, norm-shaping, and legal interventions.
We urge the German legislature to reconsider this politically expedient solution to a complex problem, and to adopt a policy that neither harms legitimate speech nor emboldens autocracies around the world.
Germany should support the development of new technologies, educational and norm-reinforcement projects, and increased access to existing legal remedies. It can do so by bolstering sustained consultation between civil society, industry, and policymakers, and by strengthening the capacity of individuals and civil society to engage in counter-speech and educational campaigns.