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
Protectionist policies, such as recently adopted German retrictions on public sector cloud use, can ultimately translate into a threat for the open and global structure of the Internet, argues Daniel Castro, Vice President of the Information Technology and Innovation Foundation and Director of the Center for Data Innovation
The Digital Post: Newly adopted German rules for government cloud computing means official data can only be processed in Germany. What is your opinion?
Daniel Castro: This is an unfortunate development, both for Germany and for others. First, countries like Germany should be an ally in support of free trade, and by enacting these types of non-tariff barriers to trade it gives cover to other countries who want to enact protectionist measures.
Second, by restricting access to foreign cloud providers, Germany is “cutting off its nose to spite its face.” Germany organizations benefit from having access to the best cloud providers, and many of these are foreign companies. This will raise costs and decrease productivity for affected organizations.
Third, there is little real benefit in terms of privacy and security to storing data within the country versus abroad. Countries should be working to clarify any distinctions. This is one reason my think tank has called for a “Geneva Convention on the Status of Data” to determine when government agencies can lawfully request access to data.
Most developed countries should be able to agree to common standards and abide by them. The end goal should be a data free trade zone that extends globally.
The Digital Post: Ever since the Snowden revelations came out, German PM Angela Merkel has been advocating for a separate European communication network/infrastructure. What might be the implications of such project, if it ever is implemented?
Daniel Castro: United States and Europe are allies on many issues, and it would be counterproductive to build separate infrastructure rather than working together towards a common goal.
Neither wants the other to spy on them, so they should be able to come to terms to upgrade the infrastructure we already share.
The greater threat to both U.S. and German interests are from China, so there is an opportunity to put aside past issues and come together to confront a looming issue.
The Digital Post: You often speak about the rise of “data nationalism” across the world. What is this phenomenon about?
Daniel Castro: Many countries are trying to pass laws and regulations to keep data within their borders, such as by requiring data to be processed locally. One reason countries are doing this is because they believe it will help create jobs, such as construction jobs for data centers.
But the net impact is very negative, as it raises the cost of doing business for the rest of the economy, and many businesses are increasingly dependent on cloud infrastructure. Moreover, some rules limit cross-border data flows which means a multinational company will run into serious issues as it tries to operate on a global scale.
The Digital Post: Is data nationalism a threat to the current structure and functioning of the Internet? Why?
Daniel Castro: Yes. The primary benefit of the Internet is that it is a global, open network available to all. Protectionist policies can chip away at this ideal until we are eventually left with a series of disjointed national or regional Internets.
Policymakers should be very concerned about overreacting to short-term fears about data privacy at the expense of damaging the potential growth of data-driven innovation in the Internet economy.