Germany’s New Law Is a Milestone for Social Media Regulation in Europe
On a day overshadowed by a historic vote to legalize same-sex marriage, German lawmakers formally approved a new law that will expose social media companies such as Facebook to heavy fines if they fail to take down hate speech and other criminal content.
Under the law, which will come into effect in October, Facebook, Google-owned YouTube, and other social media platforms will have to take down posts containing “obviously illegal” material within 24 hours of being notified of it. For less “obviously” criminal content, the compliance timeframe is seven days. If they repeatedly fail to meet those deadlines, they will be liable for fines of up to 50 million euros ($56 million).
The law is a landmark in holding social media companies accountable for the material posted on their sites. It sets a precedent, in the West at least, that contradicts U.S. legislation passed at the dawn of the Internet age that broadly shields tech companies from such liabilities.
The “Grand Coalition” government of Chancellor Angela Merkel’s Christian Democrats and the center-left Social Democrats drafted it in response to an explosion of hate speech on social networks, particularly Facebook, after the migrant crisis in 2015, when Merkel’s decision to accept over 1 million refugees and migrants (a large part of them fleeing the civil war in Syria), triggered a violent backlash from some Germans, extending to physical assault on individuals and arson against migrant shelters.
With an eye on its Nazi past, Germany has tended to be more willing to limit freedom of speech than to allow extremism to spread unimpeded. That puts it on a collision course with U.S. legislation, which has generally been guided by First Amendment rights.
Facebook, which has some 20 million active users in Germany, said in a statement that it still opposes the law: “This law as it stands now will not improve efforts to tackle this important societal problem,” it said in a statement. “We feel that the lack of scrutiny and consultation do not do justice to the importance of the subject.”
In a blog post earlier this month, Facebook’s head of public policy in Europe, Middle East and Africa Richard Allan noted that it takes down on average around 3,500 posts a week in Germany, a task that it largely outsources to a service provider. Facebook had avoided many of the legal complaints against it in Germany in the past by basing staff responsible for platform content in Ireland, where different laws apply. The new law requires companies to have designated competent executives in Germany itself.
The law has been criticised from both sides. Civil liberties groups argue that the timeframe allowed for deleting hate posts is unrealistic, and they have also warned that users have little recourse if network companies get over-zealous and start blocking accounts just to be sure of staying on the right side of the law.
“I still feel that the incentive to delete is bigger than the incentive to uphold freedom of opinion,” Renate Künast, the head of the opposition Green Party, was quoted as saying by Die Zeit. At the other end of the political spectrum, the populist right-wing party Alternative für Deutschland called it a “black day for freedom in Germany, and for freedom of speech.”
At the same time, others criticise Justice Minister Heiko Maas for watering down the initial bill. The 50 million euro fine will now only apply for repeated violations, rather than immediately and automatically. Moreover, it outsources much of the enforcement to what the law calls “recognized bodies of regulated self-regulation,” something that many fear will be too soft on social media companies. Markus Beckedahl, founder of Internet watchdog Netzpolitik, called it “a fake-law against hate-speech” that fails to stop social media companies replacing the rule of law with a “one-sided definition of rules of communication through “terms and conditions, community standards and technical arrangements.”