What happens to freedom of expression when a law against hate allows deleting content without judicial intervention.
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In a few weeks it will be three years since the entry into force of the new Penal Code and the Citizen Security Law in Spain, better known as the gag law. A rule, the latter, that has converted fouls into administrative offenses replacing the judges by the security forces when deciding on a fact.
According to data cited from the Government of Spain, there were three million offenses that came out of judicial control. Since the rule is in force, the one who decides in the first instance on one of these infractions is the police. As the lawyer Carlos Sánchez Almeida explained in his day, “Before a judge it is possible to debate whether a certain conduct is protected by law”, but discussing a fact with police officers would mean “being arrested for disobedience.”
When judicial intervention is not required, the first decision on an offense is the police or even a company, as in the case of Germany
In Germany last year, a controversial law against social media hatred was passed by which companies like Twitter, Facebook or YouTube are obliged to delete content reported as offensive by its users without the intervention of the judiciary. It came into force on January 1st.
When it comes to “manifestly criminal content”, they have a period of 24 hours to carry out the removal. In milder cases, the margin they have is one week. If these social platforms systematically do not comply with the obligation, the German authorities can fine them up to 50 million euros according to this recently approved legislation.
However, the most striking thing is that the absence of judicial intervention goes further than in the Spanish case.
In the case of this law, known as NetzDG in Germany, who decides whether or not the reported content incurs insults, threats, incitement to violence and hate crimes are the companies responsible for the services in which they appear. And it only applies to these media, to “social networks”, to “platforms designed for users to share content with each other or to make that content available to the public” according to the standard.
In Germany, Twitter, Facebook or YouTube have become unofficial judges who rule which content is permissible and which is not on their platforms
Therefore, Twitter, Facebook or YouTube – by definition WhatsApp or Telegram would not be directly affected – become judges who they dictate which contents are permissible and which are not, which are or are not “manifestly criminal”, at the risk of being able to make a mistake and without a judge taking sides according to the rest of the laws of the country.
As in the Spanish case, this situation has aroused the misgivings of various groups. From activists who defend a free internet to legal experts who consider this legislation an outsourcing of justice in the country. Everyone fears that such a context could cause the massive blocking of messages reported by users that do not constitute a crime, limiting freedom of expression.
After the entry into force of the NetzDG on the first day of this 2018, problems and controversies began to arise. One of the first accounts, if not the first account affected by the new regulatory framework, was that of a leader of the far-right Alternative for Germany party.
The vice-president of this organization and deputy in the Bundestag, Beatrix von Storch, criticized through a message on Twitter the dissemination of a warning from the police of the city of Cologne which appealed to a peaceful New Year’s Eve in various languages, including Arabic. He spoke of “hordes of barbarian men, Muslims gang raping.”
Twitter temporarily blocked the account of a far-right political leader and that of a satirical magazine shortly after the entry into force of the rule
The police message was intended to prevent events such as those that occurred two years ago, when hundreds of sexual abuse allegedly committed by young North Africans were reported during year-end celebrations, and the Cologne police denounced the policy tweet, being their account temporarily blocked by Twitter.
Criticism from the German extreme right for this decision was immediate, as did the satires on the message spread by the extremist leader. Titanic, the most popular of Germany’s satirical publications, ironically criticized the police message offering “asylum” to the messages of the deputy of Alternative for Germany, which came to parody paraphrasing them.
Despite being a satire, the satirical magazine account also ended up blocked. This fact provoked a multitude of criticisms such as those of the German Press Association.
Titanic editor-in-chief Tim Wolff said in late January that “the law is compatible with freedom of expression, but with a German twist”. Speaking to El Salto, he acknowledged that he may have good intentions, “but instead of making Twitter and other responsible companies alert if there are hate messages that could constitute a crime, it demands that they delete it quickly, as if it had not happened” . And he concludes: “That is something very German: ‘___s? A thing of the past …’”.
Within reprehensible and punished behaviors, other harmless behaviors such as sarcastic tweets or black humor can enter, with the consequent danger to freedom of expression
Beyond the streets, the governments of more and more countries they want to regulate what is said on social media through mechanisms seen by many as excessive, lacking guarantees. In the German case we speak mainly of hate speech, but apart from these, harassment, intimidation or misinformation are other dark realities of social platforms that we also want to combat.
What can threaten freedom of expression is, however, that within these reprehensible behaviors and to censor other harmless behaviors may enter, acceptable by the whole of society depending on the degree of tolerance that one has, without a judicial authority deciding it. Like sarcastic tweets, black humor or criticism that goes beyond words for all audiences.
The debate on control methods, on where to put the limit between what is permissible and what is not, both in social networks and in other areas, continues.
