By Conor L. McSweeney
The Cabinet of Germany recently approved a draft bill of legislation targeting social media firms with significant financial penalties if they fail to remove illegal content within statutorily defined timeframes. The Cabinet is representative of the leading ministers from the ruling coalition of parties in the Parliament of the Federal Republic of Germany (the “Bundestag”) in charge of the government, making it likely that the legislation will become law. Chancellor Angela Merkel has also given her backing to the legislation and appears motivated to take action against the widespread online abuse and incitement of violence taking place on the internet.
There are three main components of the proposed legislation. First, is the requirement to delete from publication any content considered libelous, slanderous, defamatory, hate speech, intended to incite people to commit a crime or terrorism, or child pornography. If the content is obvious on its face to be criminal, the social media firm has twenty-four hours to comply with deletion of the content. For all other illegal content, the social media firm has seven days to remove it. It is important to note that the social media firms will be expected to hire in-house content review teams that are monitoring whether content on their site that meets the criteria in the legislation. In addition, citizens and government authorities may also alert the company, which also creates an obligation for the social media firm to remove the illegal content. This obviously puts a private company in the undesirable position of having to become judge and jury as to whether the content crosses the threshold into obviously criminal.
The second major component of the legislation is that there are significant financial penalties that could be levied against a non-compliant firm, capped at up to €50 Million. In addition, the chief representative, or director, of the company’s German-registered entity could be fined in their individual capacity in the amount of €5 Million. These heavy fines are obviously meant to act as a deterrent to social media firms to prevent them from continuing to turn a blind eye to hate speech and other illegal content, while ensuring hands-on management. While the German Justice Ministry made clear they would not necessarily impose heavy fines upon the first offense, there is much latitude given to the regulatory authorities to determine the penalties if their warnings are not heeded.
The third major component of the proposed legislation requires the affected company to file quarterly reports on malicious activity as well as report to regulatory bodies information concerning the identities of people posting illegal content on the social media platform. With German citizens particularly sensitive to the collection of internet users’ personal information, this requirement to report the identities of people posting hate speech content may raise serious red flags among the country’s population. However, those behind the legislation may believe that the exposure of the offender’s identity is a warranted intrusion into their private life as a result of their illegal actions.
With federal elections for a new Bundestag set to take place on September 24, 2017, there is an urgency on the part of the Cabinet to get the legislation enacted this summer. Germany took notice of the widespread proliferation of fake news articles and online trolls that attempted to influence the outcome of the election in the United States in 2016. A significant purpose of the legislation is to limit the potential damage fake news and trolls could have on the election outcome to the maximum extent possible. In addition, Germany has experienced widespread disinformation on social media platforms with fake news articles about immigrants in reaction to Germany’s liberal migration policy for refugees fleeing conflict in the Middle East. This has sowed distrust among the existing German population with regard to the immigrant population and negatively impacted civic life.
The German government also appears to have simply reached its breaking point with the social media firms and their failure to timely remove illegal content from the internet. In December 2015, the German Justice Ministry reached a good faith agreement with the big social media firms like Facebook, Twitter, and Google (YouTube) to take down all illegal hate speech and incitement to violence from their sites within 24 hours of notification by relevant authorities. By May 2016, a similar framework for social media firms to remove hate speech within 24 hours was adopted by the entire European Commission in the form of a code of conduct. The biggest difference between the existing measures and the German legislation is that the legislation would turn the social media firms’ commitment into law, where failure to comply leads to significant financial penalties. The German Cabinet believes the only way to truly bring the companies into compliance is to threaten them with heavy fines that impact their bottom line.
The problems experienced by the German population with respect to hate speech, fake news, and online trolls generating abusive content is not a uniquely German problem. The United States just experienced a whirlwind 2016 presidential election campaign that saw social media sites like Facebook and Twitter become overrun with fake news and disinformation implemented by Russia in an attempt to influence the minds of voters. However, it is difficult to imagine a similar law withstanding constitutional scrutiny in the United States where the 1st Amendment right to free speech is widely protected, with some notable exceptions, such as speech intended to incite immediate violence. United States citizens also enjoy due process rights under the 5th and 14th Amendments that ensure their rights to a fair judicial hearing are preserved. Social media companies currently insert contractual rights into a user agreement or user code of conduct to allow them to remove illegal content from their platform. But reporting the names of people that the private company deems to have posted illegal content to government authorities appears to be missing a due process step where the content is determined to be illegal through a judicial proceeding in the first place. This is certainly a creative strategy proposed by Germany but not one that could pick up steam in America’s laborious legislative process, let alone withstand judicial review. Nonetheless, the German approach merits paying close attention if adopted because it may influence other European nations to follow suit and the problems emanating from online hate speech and fake news only continue to grow.
Student Bio: Conor is a staff member of the Journal of High Technology Law. He is currently a third-year evening student at Suffolk University Law School and works full time in the corporate legal department of a cloud technology company. He possesses a B.A in Political Science from Siena College with a minor in English.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.