The Atlantic (“Germany’s Attempt to Fix Facebook Is Backfiring“):
Both tweets were quickly flagged and deleted from the platform, as were a series of tweets from the satirical magazine Titanic parodying von Storch’s remarks, making them among the first casualties of Germany’s new Network Enforcement Act (NetzDG). The law, which went into full force on January 1, mandates that social-media companies delete what it calls “manifestly unlawful” posts on their platforms within 24 hours of being notified or risk facing heavy fines. (German law bans, for example, incitement to hatred, incitement to crime, and the spread of symbols belonging to unconstitutional groups.) Since the NetzDG took effect, it has been hailed as a success by some experts, and a “repressive regulation”—a blow to free speech—by others.
[….]
“I’m far from being a fan of the far right, but a lot of them are afraid that their postings are deleted because of their beliefs, not because of what they say,” said Jeorg Heidrich, a German internet lawyer and a longtime opponent of the regulation. He said that the NetzDG incentivizes social-media companies to “delete in doubt”—to remove any content that seems like it might be illegal—and he is one of many who have observed a general “chilling” of speech online and offline in Germany. “The NetzDG is on people’s minds,” he said. “Generally, people are more careful what to think, what to write. Lots of people are afraid of losing their accounts.”
[…]
And despite crying censorship against her, Weidel has also herself forced Facebook to restrict some content. Last month, Weidel earned praise for bringing Facebook “to its knees” in Germany after winning a court case against the company. She demanded that the platform make a post calling her a “Nazi swine” and viciously attacking her sexual orientation completely inaccessible to Facebook users in Germany, even those using a VPN. When she first reported the offensive comment to Facebook in late January, the company quickly made the post invisible to users with German IP addresses. But Weidel, who has a home in Switzerland, noticed that it was still viewable to users who were outside the country, or whose IP addresses made it seem like they were. (The NetzDG stipulates that social-media companies remove illegal posts that are visible to users inside Germany, but does not consider how this could impact the circulation of content across borders.) As a result of her petition, Facebook must ensure that individuals in Germany cannot use a VPN to access illegal content. The easiest way to do this would be to remove offensive posts completely; the court’s forthcoming written decision is expected to explain how the company should comply with the ruling.
[…]
Martin Munz, a White & Case attorney representing Facebook, called the offending comment “tasteless” but warned of the repercussions of the ruling: By compelling the social-media company to remove the post, it would, in effect, be enforcing German speech law internationally, even in places where the post’s content would be perfectly legal. Under the ruling, unless Facebook found a workaround, the post would be invisible in other countries too, just because it’s illegal in Germany. “Facebook is not a superjudge,” Munz said.
It is unlikely that Facebook would comply across its entire platform: The penalty would most likely be a fine in Germany if the post remains visible. But that hasn’t stopped the AfD from claiming that Weidel’s case exposed the pointlessness of trying to regulate online speech and the uselessness of the law.
Weidel’s case is the latest in a string of well-publicized incidents that highlight the shortcomings of the German legislation—as well as the thorny problems that could accompany any attempt to bring social-media platforms into step with national law. “It’s sad that today the AfD is making their point in the political sphere as well as in court,” Chan Jo Jun, a lawyer in Wurzburg whose work helped lay the groundwork for the NetzDG, told me. Despite evidence that overblocking is taking place just as Facebook warned it would, there is still broad support for the law, and lawmakers are currently considering revisions that would enable users to contest wrongfully deleted posts.
As noted many times over the years in this space, the American concept of free speech is much broader than it is even in other Western democracies. While I have a strong bias in favor of the American concept, I at least understand some of the cultural reasons why other societies—and in particular Germany—would privilege social harmony over individual absolutism on the issue. And, by and large, I believe the Germans, British, and others have the right to make those judgments vis-a-vis their own citizens.
But, of course, the normal standards of international sovereignty don’t work with global enterprises such as the Internet. As seen in the example above, for Facebook (or Google, or any other site) to comply with Germany’s law is, in effect, to give Germany governing authority over those companies. And not just Germany: each of the 195 countries on the planet would, theoretically, have the same authority. For that matter, so might hundreds of thousands of smaller polities whose national governments cede jurisdiction over these matters to localities.
In the olden days of yore—say, 1992—this sort of thing was relatively straightforward. If an American company trafficking in World War II memorabilia wished to do mail order business in Germany, they would be expected to familiarize themselves with and follow German law with respect to Nazi paraphernalia. If they violated German law, they would be subject to penalties according to established procedures under international law, treaty arrangements, and the like.
But the Internet is something altogether different. Facebook isn’t shipping anything to Germany. It’s simply hosting a social media platform to registered users, who can be from anywhere. Further, it’s serving that platform to anyone, anywhere, with a web browser and an Internet connection. It strikes me as completely unreasonable to expect them to comply with the laws of 195 different countries. And outrageous to, in effect, make the people of every country effectively subject to the laws of every other country.
Presumably, authoritarian states like Iran, North Korea, and China have more restrictive content policies than Germany, very much a free society, if one with a narrower interpretation of freedom of speech. What’s to stop those governments from restricting Facebook posts that criticize their leadership? Historically, they’ve done so by technical means—working to block those sites from being received in their countries. At least in the case of China, gives them some leverage to force companies wanting their sites available to that massive population to work to comply. But that’s a very different thing than what Germany is proposing.
Furthermore, while the likes of Facebook and Google have massive resources to respond to all these takedown requests, there’s no way that a smaller site could do that. Technically speaking, OTB is a social media platform. We don’t comment much on German politics here, much less engage in what reasonable people would consider hate speech. But it would be ludicrous to expect a Virginia-based weblog to comply with the laws of Berlin.
