German “Facebook Law“ creates risk of over-blocking

Reporters Without Borders is concerned that the “Facebook Law” about to be finally passed by Germany’s second chamber of parliament will have negative repercussions for press freedom. Even though during parliamentary deliberations the governing coalition took up some of the criticism against the bill and changed a number of problematic provisions at the last minute, the core problem of the bill against hate-speech in social media – or Network Enforcement Act, as it is officially named – remains unresolved: Backed by a threat of heavy monetary fines, the law will oblige providers of social media platforms such as Facebook, Instagram, YouTube or Twitter to remove “clearly unlawful” content within 24 hours of notification.

“The short deadline for removal, coupled with the threat of heavy fines, will very likely drive social networks to remove more content than is legally justified. Even journalistic publications will face a real danger of being affected by this kind over-blocking without due process”, said RSF Germany’s executive director Christian Mihr. “This hastily-drafted bill should be adjourned and only decided upon after national elections this coming fall and after thorough consultations with civil society. This applies especially true for the crucial question under which conditions content will have to be removed.”

The obligation to remove content within 24 hours will apply to posts “clearly” punishable under German criminal law, such as obvious cases of sedition, threats, insult, libel and slander. For illegal, but not clearly defamatory or inciting content, the deadline for removal is set at seven days and can be extended if the respective network delegates the binding decision to a yet to be created body of self-regulation. Consistent non-compliance with the law may be punished with fines between five and 50 million Euros.

THE BILL RISKS AGGRAVATING THE PROBLEM OF NON TRANSPARENT CONTENT REMOVAL PRACTICES

Given social networks’ essential role not only as a tool of journalistic investigation and for news distribution, but also for bypassing censorship in repressive countries such as China, Turkey or Vietnam, RSF has warned Germany’s government and lawmakers against setting a dangerous precedent that may easily be used as an excuse for new censorship by authoritarian governments eager to repress independent voices.

At the same time, regulation of social media is sorely needed because networks like Facebook have a history of removing journalistic content and backing down only after public protest. For instance, last fall Facebook deleted a post by Norway’s Aftenposten newspaper showing the iconic photo of the “Vietnam girl” fleeing naked from Napalm bombs. Last year in June, the network blocked the account of French journalist and Radio France International terrorism expert David Thomson because of an old post showing a photo depicting the “Islamic State” militia’s flag. In Myanmar, Facebook recently provoked a storm by suddenly blocking posts containing the word “kalar”, which is often employed by nationalists as a derisive term for the country’s Muslim minority but may equally be used in innocuous expressions or in media articles criticizing nationalists’ agitation.

Examples like these show how problematic it is to let social networks decide in a completely non transparent manner which content to delete or block. RSF has therefore called for years on social network companies to engage in a serious dialogue about this practice. However, the new German law risks aggravating the problem rather than encouraging procedures tied more closely to the rule of law. It remains thus unclear how the private companies that social media providers are should be able to decide within a very short timeframe about complex legal questions that often take months to be ruled on when taken to court.

NO EMPIRICAL BASIS EXISTS FOR THE NEED OF SUCH A LAW

Among the questions left open by the bill is why some criminal offenses are to be covered by the new law while others are not. It also remains unclear why the government deems necessary a new law for some offenses in the first place, considering that empirical data about social networks’ performance dealing with hate speech is virtually non-existent.

Reporters Without Borders and almost all other experts had lambasted the bill in a public hearing by parliament’s legal committee. After that, the governing coalition reduced the range of offenses covered by the bill and excluded in particular state-related offenses such as insult of the president. The coalition also dropped a clause requiring social networks to use content filters that would have automatically analyzed any existing content and deleted it if deemed illegal, which would effectively have made impossible to publish some content even though no judge would ever have ruled on its legal status.

Among its few positive aspects, the bill obliges social networks to name representatives who will have to respond to prosecutors’ requests within 48 hours, aiming to speed up judicial investigations and to strengthen legal recourse. The bill also requires the companies to publish transparency reports about their deletion practice, even though it is incomprehensible why such reports will now have to be produced every half year only rather than every three months, as was initially intended.