The challenges posed to our democracies by “fake news,” hate speech, and incitement to violence are matters of deep concern. But laws that undermine individuals’ due process rights and co-opt private companies into the censorship apparatus for the state are not the way to defend democratic societies.
Anticipating federal elections in September, Germany’s Minister of Justice last month proposed a new law aimed at limiting the spread of hate speech and “fake news” on social media sites.
But the proposal, called the “Social Network Enforcement Bill” or “NetzDG,” goes far beyond a mere encouragement for social media platforms to respond quickly to hoaxes and disinformation campaigns and would create massive incentives for companies to censor a broad range of speech.
The NetzDG scopes very broadly: It would apply not only to social networking sites but to any other service that enables users to “exchange or share any kind of content with other users or make such content accessible to other users.”
That would mean that email providers such as Gmail and ProtonMail, web hosting companies such as Greenhost and 1&1, remote storage services such as Dropbox, and any other interactive website could fall within the bill’s reach.
Under the proposal, providers would be required to promptly remove “illegal” speech from their services or face fines of up to 50 million euros. NetzDG would require providers to respond to complaints about “Violating Content,” defined as material that violates one of 24 provisions of the German Criminal Code.
These provisions cover a wide range of topics and reveal prohibitions against speech in German law that may come as a surprise to the international community, including prohibitions against defamation of the President (Sec. 90), the state, and its symbols (Sec. 90a); defamation of religions (Sec. 166); distribution of pornographic performances (Sec. 184d); and dissemination of depictions of violence (Sec. 131).
NetzDG would put online service providers in the position of a judge, requiring that they accept notifications from users about allegedly “Violating Content” and render a decision about whether that content violates the German Criminal Code. Providers would be required to remove “obvious” violations of the Code within 24 hours and resolve all other notifications within 7 days.
Providers are also instructed to “delete or block any copies” of the “Violating Content,” which would require providers not only to remove content at a specified URL but to filter all content on their service.
The approach of this bill is fundamentally inconsistent with maintaining opportunities for freedom of expression and access to information online. Requiring providers to interpret the vagaries of 24 provisions of the German Criminal Code is a massive burden.
Determining whether a post violates a given law is a complex question that requires deep legal expertise and analysis of relevant context, something private companies are not equipped to do, particularly at mass scale. Adding similar requirements to apply the law of every country in which these companies operate (or risk potentially bankrupting fines) would be unsustainable.
The likely response from hosts of user-generated content would be to err on the side of caution and take down any flagged content that broaches controversial subjects such as religion, foreign policy, and opinions about world leaders. And individuals – inside and outside of Germany – would likely have minimal access to a meaningful remedy if a provider censors their lawful speech under NetzDG.
The proposal is also completely out of sync with international standards for promoting free expression online. It has long been recognized that limiting liability for intermediaries is a key component to support a robust online speech environment. As then-Special Rapporteur for Freedom of Expression, Frank La Rue, noted in his 2011 report:
“Holding intermediaries liable for the content disseminated or created by their users severely undermines the enjoyment of the right to freedom of opinion and expression, because it leads to self-protective and over-broad private censorship, often without transparency and the due process of the law.”
The Council of Europe has likewise cautioned against the consequences of shifting the burden to intermediaries to determine what speech is illegal, in conjunction with the report it commissioned in 2016 on comparative approaches to blocking, filtering, and takedown of content: “[T]he decision on what constitutes illegal content is often delegated to private entities, which in order to avoid being held liable for transmission of illegal content may exercise excessive control over information accessible on the Internet.”
Shielding intermediaries from liability for third-party content is the first of the Manila Principles on Intermediary Liability, a set of principles supported by more than 100 civil society organizations worldwide. The Manila Principles further caution that “Intermediaries must not be required to restrict content unless an order has been issued by an independent and impartial judicial authority that has determined that the material at issue is unlawful.” It is a mistake to force private companies to be judge, jury, and executioner for controversial speech.
CDT recommends that the German legislature reject this proposed measure. It clearly impinges on fundamental rights to free expression and due process. The challenges posed to our democracies by “fake news,” hate speech, and incitement to violence are matters of deep concern.
But laws that undermine individuals’ due process rights and co-opt private companies into the censorship apparatus for the state are not the way to defend democratic societies. Governments must work with industry and civil society to address these problems without undermining fundamental rights and the rule of law.
Picture credits: Medienfilter.de
Attempts to censor alleged “fake news” on the Internet will backfire massively. The main stream media and main stream politicians should rather make a better effort to convince people. The internet is open to them too.
One of the promises of the internet has been that it will bring about better democracy (here and here, for example). Even before the web was invented, Vannevar Bush, the creator of the hypertext concept and the Memex machine expected that science and information will lead to a better society (source).
Since 1990s, when those ideas started to materialize, everybody saw that the internet was vastly increasing the access to information and the ease of connecting people.
The conventional wisdom has been that better informed citizens would be making better political decisions and that the more connected people will also be forging a more tightly connected society. This would both lead to e- (for electronic) or i- (for internet) democracy.
The peak of eDemocracy
In retrospect, it would appear that the peak eDemocracy optimism was reached in 2008 with the election of Barack Obama as the president of the United States.
His was one of the first campaigns where the internet played a major – some would say decisive – role. Facebooks’ revolutions, Ukrainan and Arab Springs, reinforced the hope in the positive change that information technology can bring to the world.
Social media like blogs, Facebook and Twitter were the heroes of the day. Revolutions were won on Twitter and dictators toppled on Facebook.
And then Brexit and Trump won. No longer are the social media the heroes of the day. On the contrary. The internet is now blamed for results that were not what the main stream media and the intelligentsia recommended.
There is an old saying that goes, “On the internet no one knows you are a dog”. On Facebook no one knows your news company has a skyscraper on Manhattan or offices on Fleet Street.
You could be a teenager in Macedonia or an independent writing for Breitbart News or an anonymous blogger. The internet would carry your messages in exactly the same way as if you were a “proper” media.
Social Networks would disseminate news based on enthusiasm of readers’ recommendations, not based on pedigree.
Brexit and Trump
For the first time people’s opinions were largely shaped by their peers not by professional opinion makers and thought leaders. We, the people, were the gatekeepers, not the main stream media.
Greener’s Law – don’t argue with a man who buys ink by the barrel – was proven wrong. It is a version of a saying “you don’t argue with children or the journalists”. The first would in the end throw a stone into your window, the journalist would always have the last word.
Trump was able to wage a frontal war with main stream media and was able to win it. On the Internet, the social media has the last word.
Ending up in the losing side, the main stream media invented excuses and concepts such as fake news and post truth. It had the opposite effect.
People were reminded, on the internet, that it was the old media that has been biased and openly colluded with one of the sides in the UK referendum and US elections. News from main stream media was labelled “fake news” too, just as was from the new media.
Internet as a threat
For the main stream media and main stream politics the internet suddenly fell of grace – it is not a tool of human rights and democracy any more. Free and open internet is not seen as an asset of our democracy but a threat.
Politicians, particularly in Europe, are speaking openly about the threat that Facebook and other social media are for democracy. They are calling for the regulation of social networks (Germany, France, EU).
They would like to ban fake news and make sure that only the properly verified content can be spread by the users. It is tragic to see how happy the internet companies are to comply (Facebook), instead of standing firm and not letting any form of censorship interfere with the free exchange of ideas on their networks.
The established politics and media cannot afford that democratic procedures – with the help of social networks – bring about a wrong result again. In 2017 there will be very important elections in France and Germany and the anxiety is understandable.
But calling results of a democratic election or a referendum wrong is the essence of a failed understanding of democracy and of the impacts of internet on democracy. That it causes wrong results. That democracy reaches wrong decisions.
What happened to the maxim that “in a democracy the people are always right”?
Friction free democracy
Bill Gates famously said that the essential contribution of the internet is that it reduces friction in the economy. That it brings buyers and sellers closer together and is providing more information about each other.
The same that was said about the economic market can be said about the political market. There is less friction between the will of the people and politics. There is more information about the people and about politicians.
It would be wrong to re-introduce friction – with measures that are essentially censorship by some kind of an Orwellian ministry of truth. In Germany an organization called Correctiv will be telling what is the Truth and what is not. In France a panel of old media representatives will be doing the same.
I have no doubt in the good intentions of all that. As I have no doubt that the social media companies are playing along not because of good intentions but because of business interests.
I am just afraid that it will backfire. Backfire massively. And the stakes are simply too high. The very existence of the European Union is hanging by the thread of the French elections. And with the existence of the European Union the existence of European Civilization. It can’t be protected by former superpowers individually.
Use the level playing field
Instead of shaping the internet according to their wishes, the main stream media and main stream politicians should make a better effort to convince people. The internet is open to them too.
They will need to do better than calling someone a fascist or a populist. The net should be used to debate issues not exchange labels and hashtags. It should be used to argue. To speak to people’s fears and dreams. This is not populism, this is democracy.
Will we get a wrong result? When asked if the French Revolution was a positive or a negative event in history, chairman Mao answered that it may be too early to tell.
This may be a post truth story but it helps introduced my point. Which is, it may be too early to tell if Brexit was wrong. I think it was a mistake. But I also think blaming the internet for it is a mistake as well. And drawing policy decisions from this wrong diagnosis would lead to even graver mistakes.
The internet is making democracy more challenging and open. Having friends and support in main stream media is not enough anymore.
People, not just journalists, are gatekeepers and they need to be convinced. So let’s stop bashing Facebook, let’s stop blaming Russian hackers, lets scrap the ideas for censorship of social networks. Let’s stand for the freedom of speech with includes freedom to fake news!
The so called populists thrive on “us” vs. “them” narrative. People have sympathy for the underdogs. They elected Trump and chose Brexit against the better advice of the dominant speech in the main stream media.
If that domination spreads to the social media as well, the job of “populists” would only be easier. Whole internet cannot be controlled. Somewhere they will read how unfair the battle of their David against the enemies’ Goliath is.
Fake news neutrality
Out societies need more trust. And that means trusting people that they will be able to distinguish between true and fake themselves. And trust the idea that true can win over fake without tilting the playing field against the fake.
Let’s trust in the power of true and the weakness of fake enough to keep the internet and the social networks “fake news” neutral and open to all.
Picture credit: AlexaGrace8495