Respect for freedom of speech and expression has dwindled globally over the last decade. According to the Reporters Without Borders’s Press Freedom Index, which ranks 180 countries according to the level of freedom available to the media, a regressive trend has been observed in an overwhelming majority of European countries from 2013 to 2017: Germany slid from a score of 10.24 in 2013 to 14.97 in 2017, while the United Kingdom went from 16.89 to 20 at the same time (respect for media freedom is inversely proportional to the score).
The exponential growth of social media, which is today responsible for a large chunk of online expression, has naturally led to such companies bearing the brunt of these restrictions. In a world where Facebook has nearly 2 billion users, any attempt to regulate only offline speech would be futile. However, restrictions imposed on online speech have not always worked well. They have often resulted in the private censorship of legitimate expression and stifling of political opposition by the government. In this background, Germany’s new controversial law under which Facebook, Twitter, and other social media companies could face fines of up to €50 million for failing to remove unlawful content, only seems to confirm our fears. The Network Enforcement Act (or “Netzwerkdurchsetzungsgesetz” in German), commonly referred to as the “Facebook law,” passed by the Bundestag, came into effect in October last year.
According to the legislation, social media companies are bound to remove or block access to content that is “manifestly unlawful” within 24 hours of receiving the complaint. This would typically include sharing of Nazi symbols or expressing holocaust denial, assumed to be easy to identify. The bigger problem however, originates with the requirement to remove or block access to “all unlawful content” within 7 days of receiving the complaint. This is targeted at “fake news” and content that is flagged as offensive, but may not be clearly defamatory, inciting violence, or unlawful in the first place. This will serve as the bulk of posts that would need regulation, but the Government has failed to delineate any standards which should be employed by social media companies in making such determinations. As a result, companies like Facebook and Twitter are forced to apply their own subjective standards of legitimate expression to censor speech online. But why is this a bad thing?
First, social media companies have arbitrary, incomprehensive and even bigoted standards to determine legitimate expression. A shocking investigation by ProPublica in June 2017 revealed how the social network’s policies “tend to favor elites and governments over grassroots activists and racial minorities.” A leaked slide used for training content moderators to regulate hate speech on Facebook suggested that while “white men” were a protected group, “black children” were not. Further, it exposed the loopholes that could be exploited to continue posting hate speech against such marginalised communities. In the past, Facebook has itself acknowledged and apologised for censoring permissible speech, for instance, when they removed a post by Shaun King, a prominent Black Lives Matter Activist, who posted hate mail he had received that included vulgar slurs in order to condemn such behavior. Therefore, leaving free speech to such unpredictable and secretive standards, which are applied without any oversight, is dangerous to legitimate expression.
Second, in a situation whereby standards to determine unlawful speech are arbitrary, social media companies have a greater incentive to engage in over-broad and self-protective censorship to avoid liability. While a utopian world might find such companies defending free speech even in the face of massive fines, the reality imposes a chilling effect on speech. Facebook itself has released a statement saying, “the draft law provides an incentive to delete content that is not clearly illegal when social networks face such a disproportionate threat of fines.” This means that Facebook is more likely to censor any speech that might be questioned and generate liability, even if such speech is legitimate. This is specifically problematic as companies are expected to make such complex legal decisions within a short period of 7 days, or even 24 hours in some cases. Therefore, it puts legitimate expression on a high-risk of censorship, which impedes the functioning of a democracy that claims to protect individual liberties.
Third, regardless of the efficacy of the legislation, privatizing censorship in itself is, according to many Human Rights Activists and Organizations, inconsistent with the principle of a democracy. This law effectively gives private organizations the right to determine what legitimate speech is, which should be within the sphere of influence of the state. By transferring the responsibility of making complex legal decisions from public authorities to private companies, the responsibility for fundamental rights is given to private actors, many of which are centres of influence in society. Joe McNamee, executive director of the Brussels-based digital rights group EDRi, says it would move Europe closer to “a wholesale privatization of freedom of expression,” with “large internet companies deciding what they want the public the discourse to be, and how much restriction… to impose to have legal certainty.” The case for privatizing law enforcement is one that merits public discourse, but tacitly legitimizing it for online expression in exclusion is definitely not the way forward.
According to the standard existing in the European Convention on Human Rights (Article 10) and the Charter of Fundamental Rights of the European Union (Article 52), any restriction on the freedom of expression should be prescribed by law, in that it should not be arbitrary. Moreover, restrictions imposed must not be disproportionate to the aim pursued. Many legal experts have opined that on these grounds, the German legislation is non-compliant with EU law as it imposes arbitrary standards and disproportionate sanctions. Other international agreements, like the International Covenant on Civil and Political Rights (Article 19), also impose similar standards for restrictions on free speech. Regardless of its legality, the potential for unwarranted censorship and ability for misuse raise grave concerns about the future of free speech in Germany and beyond.