Why an Ambitious New Online Anti-Hate Speech Law Is Backfiring in Germany

Germany has a complicated relationship with free speech. Censorship is banned by the country’s post-war constitution, and memories of state control under the Gestapo and the Stasi buttress its commitment to unfettered expression. Extremist groups — from the Islamophobic Pediga movement to far-left anarchists — march freely though German cities and are provided police protection as they spout their, for many, obscene and offensive views.

But the legacy of Hitler and the Holocaust has also made Germany particularly attuned to the dangers of hate speech. Inciting hatred or advocating violence against a person or an ethnic group can carry a prison sentence of up to five years. Denying the Holocaust is against the law. So is showing the swastika or giving a “Heil Hitler” salute.

Achieving a balance between these two convictions — promoting free speech while stopping hate speech — was hard enough in the analog world. Online, it’s proved nearly impossible.

The latest attempt, a new Net Enforcement Law (NetzDG), which came into full effect Jan. 1, has backfired on German Chancellor Angela Merkel’s government, with critics claiming it both censors free expression and does little to stop the spread of real hate.

The law is an attempt to transfer existing anti-hate legislation online. Any social media network with 2 million or more users in Germany — so Facebook, Twitter, Instagram, YouTube and Snapchat — is required to comply with German anti-hate laws by quickly removing illegal material from its platform. Once posts are flagged by users, sites have 24 hours to remove “obviously illegal” content — the law outlines 20 things in this category, including showing the swastika or inciting hatred — and a week in “complex cases.” If they don’t, they could face a $60 million (€50 million fine).

The law was rushed through the Bundestag — Germany’s federal parliament — last year as virulent propaganda and hate speech, along with an unhealthy dose of fake news, spread across German social networks, fueled by the 2015 refugee crisis and Merkel decision to open Germany’s borders, letting in some 1.2 million migrants, most of them Muslims. Reports of hate speech — anti-immigrant far-right rhetoric, but also anti-Semitic rants from newcomers arriving from the Mid-East and Africa — skyrocketed. In Berlin alone, the number of criminal investigations into online hate speech jumped 50 percent. Some credit this rise in online nastiness to the success of the far-right nativist party Alternative for Germany, or AfD, which won 12.6 percent of the vote in national elections last fall, making it the third-largest party in the Bundestag.

“What the hell is wrong with this country?” ranted AfD politician Beatrix von Storch to her 30,000 Twitter followers on New Year’s Eve, just as the Net Enforcement Law was coming into force. Her rage wasn’t directed at the law, but at a seemingly innocuous tweet by the German police department in the state of North-Rhine-Westphalia (NRW), which had just wished citizens, in several languages, including French, English and Arabic, a Happy New Year.

“Why is the official police page in NRW tweeting in Arabic?” von Storch tweeted, accusing the cops of trying “to appease the barbaric, Muslim, rapist hordes of men.” She was referencing New Year’s Eve in Cologne two years ago, when there were hundreds of reported sexual assaults and robberies committed by groups of young men, mostly non-German migrants. The assaults included 24 alleged rapes.

The next day von Storch’s tweet vanished from Twitter and her entire account was blocked for 12 hours. Alice Weidel, like von Storch, a member of the right-wing Alternative for Germany party, defended her, tweeting: “Our authorities are subordinating themselves to imported, rampaging, groping, punching, stabbing migrant mobs.” Her tweet, too, quickly vanished.

Then things got silly.

“We woke up Jan. 2 and got back to work, checking what had happened over the holiday,” says Tim Wolff, editor-in-chief of Titanic, a German satire magazine akin to France’s Charlie Hebdo or Britain’s Private Eye. “We saw poor Ms. Von Stroch,” Wolff quips, “and we thought: instead of shooting her on the border, we should give her refuge and help this poor victim.”

Joking that von Storch was the paper’s new guest tweeter, Titanic sent out a series of tweets mocking the politician. “Why are NRW police using Arabic numbers for their emergency hotline?” read one “I’m not going to dial 110 (Germany’s 911) if I’m being raped by migrant Muslim hordes!” The tweet, and another like it, were deleted. When Titanic reposted them, Twitter shut down its account for two days.

The Titanic case sparked an uproar. Germany’s national association of journalists and the federal association of German newspaper publishers condemned the “censorship” saying social media firms are hitting delete by default to avoid fines.

Consider the case of Mike Samuel Delberg. In late December, Delberg, a political representative for Berlin’s Jewish community, posted a six-minute video showing a German man screaming anti-Semitic obscenities and threatening a Jewish restaurant owner. Facebook deleted the post and blocked Delberg’s account for 24 hours. The company later restored the post, with no explanation.

“The NetzDG isn’t working,” wrote Delberg in a recent online article, “reform it or get rid of it!”

There is growing support for that view. In the Bundestag, the liberal Free Democratic party, the environmentalist Greens and the socialist Left Party have joined the Alternative for Germany in calling for a repeal of the new law. Merkel’s Center-Right party, currently in the middle of tough coalition talks with the center-left Social Democrats over forming a new government, has promised to review the law in several months’ time.

“I can understand the spirit behind the new law,” Wolff tells The Hollywood Reporter, “but it’s been a very German approach to the problem. Here we have the tendency to want to hide the ugly parts of our society — we’d rather ban Nazi symbols and Mein Kampf rather than make them visible and admit we have Nazis here, too. Added to that is the old German tradition of humorlessness. Better to eliminate irony altogether than risk some misunderstanding.”

Wolff sees the Net Enforcement Law as a clash between two fundamentally different approaches to free speech: The more proscriptive German version is smacking up against an American commercial attitude of “everyone can say what they want, unless it hurts business.” He notes that, well before the new law, Titanic posts were banned by Facebook, for nudity (the paper likes its naughty cartoons) and, on one occasion, for a post mocking Facebook.

“It shows the power these social media networks already have and are already using,” Wolff says. “In our case, they are using our case to drum up opposition to this new law. I think the law’s done more damage than good.”

For Frank Uberall, president of the German journalists association, the main problem with the Net Enforcement Law is that it outsources free speech to commercial enterprises.

“I’ve called for the law to be repealed, but repealed and replaced,” he tells THR. “The government needs to do something to crack down on the illegal activities, the prosecutable offenses, happening online with regards to hate speech and fake news. But the job can’t be done by private companies unable, or unwilling, to employ sufficient qualified employees to deal with the problem.”

Indeed, while Facebook announced it would be hiring more people to deal with complaints linked to the new legislation, its more than 1,000 German moderators are swamped. In the first week alone, they have had to process hundreds of thousands of cases.

Neither Twitter nor Facebook has spoken publicly about the new law, and both declined comment.

“The real problem, and the biggest challenge, is that, in the digital world, you can just make things vanish,” says Wolff. “With print, when you get it out there, it’s hard to get rid off, but Facebook can just delete a post as if it never existed and they never give any reason at all. That’s why I’d rather see the law dropped. It sets the wrong precedent. We shouldn’t be hiding this hate, we should be making it visible. And then, the justice system can deal with it.”