January 13, 2018 at 6:00 AM
BERLIN — When 32-year-old German teacher and academic book author Bahar Aslan took to Twitter last week to accuse authorities of not doing enough to investigate an alleged xenophobic murder potentially committed by police officers, she hardly assumed that in doing so she would soon be accused of having broken the law, too. After all, freedom of speech is enshrined in the German Constitution.
But her tweet soon disappeared, and Aslan says Twitter later messaged her saying that she had violated Germany's hate crime law.
Aslan was not alone.
She and hundreds of other affected social media users have voiced criticism and concerns about censorship over the controversial new social media law that took effect Jan. 1. Originally conceived to fight online hate crimes, it has quickly evolved into a prime example of a well-intended law gone wrong, its critics are saying. But the German government continues to defend its efforts as one of the world's most progressive steps to combat the rise in online hate crimes, including defamation and verbal threats.
At the core of the tensions between Facebook or Twitter and the German government are more fundamental differences about the role of social networks in the public sphere. Whereas Germany argues that social networks are private companies and should be responsible for removing illegal remarks on their platforms themselves, Facebook and Twitter consider themselves to be public platforms. They fear that the German government is effectively privatizing law enforcement online, and putting it into the hands of companies ill-equipped to regulate speech.
“Social networks are no charity organizations that guarantee freedom of speech in their terms of service,” said Gerd Billen, an undersecretary in Germany's justice and consumer protection ministry, in a written response. Social networks, he said, had to comply with German law and not only with their own rules.
“We cannot simply accept the fact that illegal Fake News impact our democratic elections or that (online) hate crimes poison our public discourse,” Billen said.
The law forces major social networks to withhold certain comments or posts from users in the country if they are deemed illegal and offensive, and were reported by users. Social networks such as Facebook, Twitter or Instagram now face fines if they systematically fail to comply with a 24-hour deadline in the most pressing cases.
The legislation was introduced amid a recent spike in online hate speech — reported cases multiplied threefold within the past three years — and complaints by authorities that the sheer volume of incidents has become difficult to prosecute. Posts which are now being removed by Twitter, Facebook and other social networks under the new legislation are still available in other countries but are being withheld within Germany.
But critics, such as the NGO Reporters without Borders, fear social networks are not just removing posts which clearly include hate speech such as death threats or defamation. The law's opponents believe that the social networks affected by the law are opting to remove more posts than necessary over fears of fines or to deliberately derail the legislation. Twitter and Facebook denied those accusations but did not comment on specific cases.
“Facebook is not pursuing a strategy to delete more than necessary. We are working hard to implement the law in good faith,” said a Facebook spokesman. But social networks affected by the new law also acknowledged that the 24-hour deadline forces their legal teams to make rapid decisions. On Twitter, political opponents have besieged each other with removal requests since Jan. 1, putting an even bigger burden on the social networks.
Germany argues that the step was long overdue because social networks had failed to remove illegal content. “Most recently, Twitter only removed about 1 percent of (punishable) content (on average)," said undersecretary Billen. Leading social networks such as Facebook and Twitter have partially acknowledged some failures but emphasized that they voluntarily stepped up efforts to combat online hate crimes.
But for users who think they were unfairly targeted by the law, there is no easy way to appeal the decision to remove their posts, unless they choose to risk a court trial. The German government has proposed that social networks install self-regulatory bodies that pick up complaints about removed content. This idea, however, has so far found little support with Facebook and Twitter, which argue that it would be the responsibility of the government to come up with such mechanisms.
“I feel there is a lot of disagreement between social networks and German politics in terms of where freedom of expression ends,” Aslan said.
Unable to protest Twitter's decision to remove her criticism of German authorities, she posted an image of it, this time directly targeting the social network.
“Twitter censored or hid this comment in Germany, and I cannot explain why,” she wrote.
Five days later, that post was still online. But her initial tweet remained blocked.