German Hate Speech Laws: Balancing Freedom of Expression and the Fight Against the Incitement of Hatred by Catherine Forristal [Page

By Catherine Forristal, JS Law

Due to the influence of World War Two and the devastation of the Holocaust, Germany has developed some of the strictest laws in the world on hate speech in order to protect human dignity, enshrined in Article 1 of Germany’s Basic Law, the country’s Constitution. Hate speech is defined by Robert Mark Simpson as,

“a term of art in legal and political theory that is used to refer to verbal conduct - and other symbolic, communicative action - which wilfully ‘expresses intense antipathy towards some group or towards an individual on the basis of membership in some group’, where the groups in question are usually those distinguished by ethnicity, religion, or sexuality.”

In an era where communication and the rapid spread of ideas has never been easier, legislators across the globe are grappling with the challenge of adapting relevant laws to a 21st century context. In an effort to combat the growing threat that online hate speech posed and its incitement of physical manifestations of violence, Germany enacted the Network Enforcement Act (“Netzwerkdurchsetzungsgesetz,” - referenced herein as NetzDG) in 2017. This controversial legislation required social media giants such as Facebook, Twitter, and Youtube to take down comments, pictures or videos that were deemed “hateful” within 24 hours of them being flagged, or to risk fines up to €50 million.

Many proponents have praised this legislation for creating oversight of international tech companies. However, critics - including journalists and activists from both the left and right - have noted the dangerous precedent this may set for government censorship of the internet, as well as the delegation of responsibility for the moderation of hateful or illegal content online to private entities.

Konstantin von Notz, a Green Party member of the German parliament, describes the difficulty of creating legislation that effectively deals with hate speech and the incitement of hatred, while also respecting the right to freedom of expression:

“We’re walking a tightrope, having to balance the fight against disinformation, incitement and slander on one side with the right to free speech on the other, which is of paramount importance in democracies.” He added, “[t]o come up with a law that is both balanced and effective is far from a trivial task.”

The German Criminal Code (“Strafgesetzbuch,” hereinafter StGB) forbids all incitement to hatred, in a “manner capable of disturbing the public peace.” At the same time, the scope of protection of freedom of expression is very broad and Article 5(1) Basic Law strictly prohibits censorship by the State. While many online platforms originate from countries such as the United States, conceptions of free speech are varied. In contrast, the German legal system emphasises fundamental human rights and the “common good,” in contrast to the concept of an individualised marketplace of ideas that many platforms and international legal systems operate on.

In this article, a number of common criticisms of NetzDG will be explored, alongside proposed reform and alternative perspectives.

All social media platforms that have over two million users in Germany are obliged to comply with NetzDG, which involves the implementation of an accessible complaint procedure and the removal of “manifestly unlawful” content, such as incitement of hatred, defamation, and libel, within 24 hours of the content being flagged.

In 2020, German legislators amended NetzDG, requiring Facebook, Twitter and YouTube to empower the police to receive data on users posting content that German law would consider illegal. The Justice Ministry was also given enhanced powers to enforce this, leading to the imposition of considerable fines. These changes were a result of numerous terrorist attacks by far-right extremists in 2019 and early 2020: Firstly, the assassination of the pro-refugee politician Walter Lübcke, a shooting at a synagogue in the town of Halle on Yom Kippur, and a mass shooting in Hanau. In the latter two, it was confirmed that the terrorists had been radicalised primarily by the internet.

However, Sabine Frank, YouTube’s regional head of public policy warns that this “massive intervention in the rights of our users stands, in our view, not only in conflict with data protection but also with the German constitution and European law.”

Critics have also warned that the creation of databases with reported “manifestly illegal” content creates major issues of data security. Facebook and Google have filed a legal challenge to block the new rules, arguing that informing police of users’ personal information violates their right to privacy: A spokesperson for Google states:

“Network providers such as YouTube are now required to automatically transfer user data en masse and in bulk to law enforcement agencies without any legal order, without knowledge of the user, only based on the suspicion of a criminal offence [...] This undermines fundamental rights, we have therefore decided to have the relevant provisions of the NetzDG judicially reviewed by the competent administrative court in Cologne.”

content” could be deemed problematic, as legal clarity and precision have not been given by the State to the meaning of “manifestly illegal.” According to Amélie Heldt, a researcher in media law and internet policy, The State’s delegation of power to private bodies also confers the power of evaluation and interpretation, which harms the very notion of the application of the law.

In a report referencing original proposals for the implementation of NetzDG, United Nations Special Rapporteur to the High Commissioner for Human Rights, David Kaye, stated that “the law raises serious concerns about freedom of expression and the right to privacy online.” As previously mentioned, Kaye criticised the short deadlines and ambiguous criteria for removal for the potential for unwarranted censorship:

“The short deadlines, coupled with the afore-mentioned severe penalties, could lead social networks to over-regulate expression — in particular, to delete legitimate expression, not susceptible to restriction under human rights law, as a precaution to avoid penalties.”

Furthermore, critics argue that limited judicial oversight has placed enormous responsibilities on private companies to remove content. According to a United Nations Freedom of Expression Report in 2011, any legislation restricting the right to freedom of expression and the right to privacy “must be applied by a body independent of any political, commercial, or unwarranted influences in a manner that is neither arbitrary nor discriminatory.” Subsequently, the liability placed upon private companies to remove third party content in the absence of judicial oversight is not compatible with the UN Convention on Human Rights.

Press freedom activists such as Reporters without Borders have warned that this law also creates a precedent for autocratic countries to censor marginalised groups and opposition parties. Since the ratification of NetzDG into law in 2017, Russia, Venezuela, Malaysia and the Philippines have approved similar hate speech bills, explicitly referring to German law. Most notably, Turkish legislators passed what has been called “the worst version of Germany’s NetzDG yet” by the non-profit Electronic Frontier Foundation in 2020. In a country with the second-highest number of imprisoned/incarcerated journalists in the world, this legislation has further encroached on the right to free speech in Turkey.

Christine Lambrecht, Minister for Justice in Germany, has denied the accusations that Germany has set a dangerous precedent for authoritarian countries. She stated that NetzDG only compels platforms to take down content violating German law specifically, which is “the fundamental difference to the situation in authoritarian countries and regimes that don’t respect the rule of law.”

According to Jack M. Balkin, “the vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.” Developments in technology have meant that digital life is now

integral to reality and day-to-day life.

Amélie Heldt suggests that states must become more active “in regulating cyberspace directly or indirectly. Intermediaries have to keep up with different regulatory frameworks and tend toward one-size-fits-all solutions that can collectively be more restrictive than single national regulations.”

Scholars such as Robert Mark Simpson have described the difficulty of the status of hate speech, particularly in liberal and democratic states:

“On one hand, liberals believe that speech must be specially protected against government interference… But liberals also typically want to use the disciplinary function of the law to combat and reform identity-based social hierarchies. The twin liberal commitments to free speech and social equality thus seem to come into a conflict where hate speech is at issue.”

The European Union is currently drafting the Digital Services Act, which is expected to require online platforms to do more to address misinformation and illegal content on their sites. Many critics of Germany’s NetzDG have underlined the key issues that they want to see addressed within the proposed EU law reforms. Undoubtedly, lawmakers must take consideration of freedom of speech concerns, while also enforcing proper oversight of international social media platforms.