
Delete Hate Speech or Pay Up, Germany Tells Social Media Companies - dbcooper
https://www.nytimes.com/2017/06/30/business/germany-facebook-google-twitter.html?rref=collection%2Fsectioncollection%2Feurope
======
ericdykstra
Real life Ministry of Truth. Not only is this another strike at freedom of
expression in Germany, but it's an attack on the privacy of Germans.

The idea that arresting people for "hate speech" online is going to make your
country any better or safer is laughable. It just means people making jokes
will get arrested because one of their jokes offends a few people [1].

Here's a great video by a German who is concerned about the expanded
surveillance state and limitations on free speech:
[https://youtu.be/WFCKTvGU8oU](https://youtu.be/WFCKTvGU8oU)

Here's another video about German hate speech crime and statistics that I
found insightful: [https://youtu.be/kX84h6aKpaU](https://youtu.be/kX84h6aKpaU)

1\. [https://www.rt.com/uk/342513-dog-nazi-salute-
arrested/](https://www.rt.com/uk/342513-dog-nazi-salute-arrested/)

~~~
FabHK
Sorry, but no. Forcing companies that disregard the law to pay fines (not
'arresting people') is no strike at freedom of expression in Germany. (Note
that your link [1] is about the UK, a different country.)

Yes, holocaust denial and Nazi propaganda are prohibited in Germany for
historical reasons, but the notion that his severely impedes the freedom of
political speech is mistaken.

And yes, I've read my John Stuart Mill, and mostly agree with him.

As an aside, I'd still rate the level of public discourse in Germany as way
above what's happening in many other countries (though it's going downhill,
with all the private TV stations and social media, whose goal is not
edification and education, but advertisement driven profit and "engagement").

~~~
imaginenore
This law will absolutely be used to curb political speech, that's the whole
point. And you know it will be applied by the ruling party against anybody
whose views they don't like.

When you're banning "hate speech" without strictly and narrowly defining what
it is, it's a pure censorship instrument with pretty much unlimited reach.

I, for instance, think The Bible and The Quran are full of hate speech, but do
you think they should be banned in the whole country simply based on my view?

What about a Android vs iOS debates? Should we ban every shit-talking
conversation on the internet?

What about BMW vs Audi? Tabs vs spaces? Chocolate vs vanilla?

~~~
FabHK
So, first, I'm no expert in this (and defer to rbehrends's excellent comments
in this thread). The law seems to have problematic parts, as mentioned in the
article: "the statute gives companies incentives to remove content, and it
lacks a procedure for users to appeal removals."

Yet, the issue is _not_ clear cut. There are legitimate limitations on free
speech - the famous "screaming fire in a crowded theatre" thing.

So, in Germany (with a history of institutionalised genocide), the lines are
drawn a bit differently.

The notion that the ruling party will use it against views they don't like
seems far fetched, though again, I grant you that it's a slippery slope -
_Principiis obsta_ ("resist the beginnings").

But, I object to the notion that freedom of political speech is fundamentally
under attack here.

[As for the Abrahamic texts, there is case to be made that they ought to be
banned, though I grant that that wouldn't help much. As for your "reductio ad
absurdum" (tabs/spaces): again, there's unproblematic speech, and there's
legitimately prohibited speech, and then there's a grey area, and that's what
we're discussing here - where in the grey to draw the line.]

~~~
didgeoridoo
The "fire in a crowded theater" standard is considered a legal joke these
days. It has been superseded since the 1960s by FAR more stringent tests on
speech limits. Expunge this saying from your vocabulary — it has zero
relevance in modern case law.

~~~
FabHK
Good to know. (As I said, I am no expert here, but (as I know from other
areas) that does not prevent people from having an opinion...)

Do I understand you correctly in saying "more stringent tests" that more types
of speech (beyond that) are considered off limits today?

~~~
didgeoridoo
Precisely the opposite. "More stringent tests" mean that any law that tries to
limit speech must pass an exceedingly high bar — higher than ever before. The
"clear and present danger" test used by Oliver Wendell Holmes in his "crowded
theater" opinion basically says that any speech that could cause dangerous
effects could be outlawed. Modern 1st Amendment jurisprudence, by contrast,
has evolved toward the "fighting words" standard, which basically limits
restrictions on speech to outlawing "true threats"; e.g. me saying I'm going
to kill you.

------
rbehrends
This is a bad law, but this is also frustratingly bad reporting. I understand
that American media have to often translate foreign legal concepts into
something closer to American ones, so they talk about "hate crimes" and "hate
speech" (offenses that as such don't accurately reflect legal concepts as they
exist in Germany), but in this case it's not even an accurate representation
of the law.

The list of offenses that the law talks about includes a whole list of things
that aren't remotely hate speech: they include things such as the creation of
a criminal or terrorist organization or illegal distribution of pornography
(pornography is not per se illegal, but you cannot, for example, sell it to
minors).

The goal of the law is basically to enforce offenses that are commonly
committed online by deputizing social media companies. And this is where the
actual problem lies; the law does not regulate anything that isn't already an
offense, after all.

1\. Many of these social media companies do not even have a legal presence in
Germany and it is questionable whether Germany even has jurisdiction under
current EU law.

2\. Even if Germany has jurisdiction, having social media companies adjudicate
the legality of online content (even where there is a legitimate interest and
we are not dealing with offenses that affect freedom of speech) is a bad idea
in too many ways to count. The social media company is incentivized to err on
the side of banning content; they generally do not have the resources and/or
personnel with adequate legal training to properly adjudicate the issue in
many cases; and if they get things wrong, there is often no practical way to
appeal their misjudgment.

3\. The law may (due to its crude mechanisms) have a chilling effect far
beyond what any that current laws create, even though on paper we're talking
about the same offenses. That's because the legal system generally subjects
potential prosecution for many of these offenses to a high level of scrutiny
in order to protect freedom of expression. It is unlikely that Facebook and
Twitter are going to do the same.

4\. As a result, the law is probably headed for a collision course with the
Federal Constitutional Court at the earliest opportunity.

~~~
kuschku
As the law only applies to stuff that is already illegal, and only requires
companies to remove it on request, if it is obviously violating the law, ...

Well, we already know what this law looks like. It's just the DMCA, expanded
to other types of content. This is bad, but it's not nearly the end-of-the-
world that the hypocritical US-Americans on HN have been claiming it is.

~~~
rbehrends
> As the law only applies to stuff that is already illegal, and only requires
> companies to remove it on request, if it is obviously violating the law, ...

The problem is that these things often aren't "obvious". For example, one
offense that is listed in the law is §185 of the penal code, which
criminalizes insults (I'm not kidding). Because making every insult a criminal
offense would make real freedom of speech impossible in practice, actual
application of that law is subject to various and sundry constraints as the
result of case law of the Constitutional Court. As a result, it's actually
virtually impossible to commit such an offense in the political arena (in
practice, the law has therefore been reduced to an institutionalized form of
contempt of cop for the most part, and occasionally sees use as a modern form
of dueling for the few bored and rich enough to pursue a private lawsuit:
lawyers at ten paces, so to speak). But to understand that, you do have to be
sufficiently familiar with the case law.

That's not much of a problem when an actual prosecutor examines the facts: the
case against Boehmermann, for example, was pretty quickly dismissed, because
the prosecutor knew it was going nowhere fast. But now let's have Facebook's
staff – most of them without legal training – examine the same facts and they
may very well get it all wrong. Or, worse: decide to simply not bother with
getting it right and just err on the side of caution. The law does not
penalize inadvertent censorship, after all.

~~~
voidz
Thank you for the useful insights.

I worry that the chilling effect, and people self-silencing/self-limiting, are
already happening to an extreme degree. One might even regard this law as an
expression of that. So I worry that this law is fruit of what is happening,
not the other way around. I wonder whether there isn't already too much self-
censorship going on, especially with people who just have their own nuanced
(harmless) ideas.

HackerNews to me sits is remarkably well inside the eye of numerous storms.
Really happy about that.

Outside from here though people might just risk so much when all they want is
to try and express those (apparently "arguably") harmless thoughts. The risk
of falling pray to all kinds of social dangers can be very scary. Not worth it
at all, in fact. So devolves the discourse which obviously gives rise to
agression and spite as the most popular clothing of free speech.

To an extent we're doing this to ourselves more than the governments are to
blame. I'm not arguing that this law is any kind of solution to our problems.
Au contraire - what I'm just saying is that individuals in positions of
authority get more than their fair share of spite and hate, so, this is what
happens.

Yet however also, not long ago the public discourses that take place at
present were unfathomable! The whole world being able to talk together on to
such an immense scale via thing called the Internet - which, somewhat
hilariously ironically, apparently should be called just internet without a
'the' and capital I from now on, per decree put forth by some editors.

But never mind that. Point is, when we do a thing like this (give ourselves
'an internet' -o, hey!), pain is just bound to start flowing and we should be
careful with that. Our social evolution is what feels to be at stake here,
with the way things are headed.

------
RcouF1uZ4gsC
There is a scary trend of countries trying to force internet companies to
enforce their speech standards globally. We recently saw that in the Canadian
Supreme Court decision forcing Google to remove a domain globally from search.

If this continues, the only allowable content will be that which does not
offend anybody, and if that happens, the open, free Internet we all knew and
which has driven a lot of social change throughout the world will be dead.
Think of an Internet where atheism is banned because it offends religious
people, corrupt politicians's misdeeds are expunged pursuant to their right to
be foegotten, exposure of police brutality is deemed offensive and disturbing
and banned, and every country's human rights violations are suppressed because
they can be.

------
dhruvrrp
> The draft bill defines “violating content” as content under Sections 86
> (dissemination of propaganda material of unconstitutional organizations),
> ... 90 (defamation of the president), ... 166 (defamation of religions,
> religious and ideological associations), ... 241(causing the danger of
> criminal prosecution by informing on a person) ...

Over reaching laws like this are the biggest adversary to free speech. Even if
the current government believes that hate speech/propaganda needs to be
restricted, what is gonna stop someone down the line from using this law to
silence all of their opponents and criticism?

------
rl3
I'd love to see tech companies band together and play hardball with
governments that try and pull this shit. Just discontinue services on the
whole country.

The politicans would quickly change their tune once the entire country's
voting base wakes up to the fact they've been thrust into the internet dark
ages by their own legislators.

~~~
rgbrenner
Like when Google left china.. that really showed them /s

You know there are countries where Facebook does not operate.. local companies
get easy funding to recreate the service.. after all it's a proven business
model

The eu is certainly a big enough market to support a local version

~~~
RcouF1uZ4gsC
Maybe the EU is, but I doubt Germany is. In addition, Even though there is
Baidu, it is preferable that the rest of the world can Google "Tianamen
square" and get back something resembling the facts. If Google had used this
logic of "well somebody else will do it anyway", the rest of us would have
only seen what China permitted.

~~~
rgbrenner
I wasnt advocating western companies compromise their values. I was saying if
they withdraw, other companies will fill the void... so any pain that the
people experience will be temporary and the western company will be forgotten.
Just like Google was forgotten in China. Companies disappear for many reasons
all the time. People dont go out and protest to change the laws.. they move on
and find alternatives.

That's not a call to abandon values. It's just an acknowledgement of reality
and market forces. Just because someone else will do it, doesnt mean that you
have to.

------
ryankupyn
I expect that this trend of deputizing companies to police speech on their
platforms will evolve in tension with rising antitrust scrutiny of the tech
giants, because the rise of utterly dominant companies (a trend that the EU
seems intent on slowing) would make efforts to regulate speech easier.

Large companies like Google have a global presence, and assets that can be
targeted within the jurisdiction of most major governments, while a fragmented
- and more competitive - market would make it more likely that "holdouts" can
rise beyond the reach of a given government. These platforms would provide a
redoubt for regulated speech, because it would be much harder to compel them
to pay fines (though of course a country can simply block them).

At the same time, these new regulations give a competitive advantage to the
companies with the scale and resources to invest in automating the removal
process, and increases the challenges for upstart platforms, which now need to
develop the infrastructure to aggressively police content on their networks if
they want to grow beyond a certain size.

I think that in the long run, this will evolve into a stable equilibrium where
governments periodically levy large-but-not-devastating fines in the name of
"antitrust" in order to show their dedication to "competitive markets" and
"customer choice", while simultaneously working hand-in-glove with these
companies to enforce what they consider to be acceptable standards of speech
in online communities. In the long run, no major competitors will emerge, and
both the established firms and the government will silently thank their lucky
stars.

------
tehabe
The issue of hate speech is real, but putting private companies in charge of
deciding what is hate speech and what isn't, is a bad idea.

~~~
mowenz
It was not too long ago that in Germany a political artist was prosecuted for
a poem insulting a politician.

In other words, governments have already repeatedly proven they should not
have authority over what speech is acceptable, even in Germany currently.

~~~
FabHK
Not so fast. That was German satirist Jan Böhmermann reading a "poem" on TV
about Turkish president Erdoğan (the content is not really important, but it
was rather insulting, and purposefully so: calling him dumb, cowardly, and
smelly; alleging he beat little girls, fucked goats, watched child porn, and
subjugated minorities, and so on.)

Now, as it happens, Germany has a paragraph on its criminal code, § 103, that
prohibits insulting foreign heads of state. Thus, prosecution was initiated.
However:

1\. The case was dropped.

2\. In fact, legislative proceedings to drop § 103 are on their way.

So, I'm not too worried about the freedom of political speech in Germany.
Holocaust denial and nazi propaganda are prohibited, for historical reasons,
but apart from that political speech is free and vigorous.

~~~
stale2002
I don't see anything wrong with a person calling a head of state mean names.

That's like the definition of political speech.

~~~
FabHK
Yeah. "Smelly goatfucker" might not be the most political of insults, but the
guy certainly made a point (plus he did have actual politics in there, e.g.
the one on suppressing minorities).

Also, I'm glad that this §103 will be canned - it's uncomfortably close to the
Lèse-majesté laws e.g. in Thailand (that _are_ actually used to suppress
political opposition).

------
ams6110
Wonder how this affects websites that allow comments, but are not primarily
"social media" sites?

Many sites that use e.g. Disqus for comments are filled with vile racist,
homophobic, and other hateful comments.

~~~
kuschku
Any site that isn't social media is exempt. Any site with less than 2'000'000
German users is exempt.

You only have to remove content if it is obvious that it is violating existing
law, and someone has filed a report, within of 24 hours. The original poster
can also oppose this.

The law is basically the same as the DMCA.

------
honestoHeminway
This is just media and goverment trying to put the dschinny of the internet
back into the lamp. You can allmost hear the sigh:

"Why, cant we go back to the days - where you all pretended that we
represented the public, and the angry with there lifes citizens where
firewalled from one another?"

Well, guess what, these people know now that they are not alone- and even if
you burned the whole internet to ashes- they would just meet in real life.
Some people in germany have a serious freedom of expression is only my opinion
attitude. And they radicalize there opponents regularly by not discussing with
them (That opinion is beneath me).

------
mto
FB's policy is ridiculous. Show a breastfeeding woman and it's certainly gone
in the next hours. But I've reported countless foreigners for gas chamber and
teleheating crap postings and it was not considered inappropriate...what a BS.
Still, the problem with law enfocement is always that "hate speech" is pretty
fuzzy (obviously especially fuzzy for facebook)

------
fiblye
Dangerous precedent. Expect this to be "good" for a couple years, then the
definition gradually expands while nobody is looking and is used to penalize
any sort of thought that doesn't fit the social norm.

~~~
Barrin92
the definition isn't expanding, it's simply applying laws that existed since
the inception of the German Federal state seven decades ago to businesses that
operate on the internet.

Here in Germany racebaiting, holocaust denial and so forth are not protected
under freedom of speech, never have never will be. Americans will probably not
understand it in the near future, but in German jurisdiction German law still
applies. Digital business or not.

I mean, Facebook basically censors every naked piece of skin already and I
have to live with it because apparently this is offensive to Americans. Now I
find banning nazi propaganda to be much less controversial than a naked human
body, but apparently tastes diverge

------
antisthenes
..the abyss stares also into you.

------
charia
From what I've heard, this isn't/shouldn't stand up when challenged in court.

