Digital Services Act: Germany slows the anti-hate speech law

Brussels When recently posters with the appeal “Hang the Greens” appeared on the east German roadsides, the campaign din fell silent for a moment. Other parties were shaken and showed solidarity with the Greens.

A ruling by the Chemnitz Administrative Court, according to which the posters of a right-wing extremist splinter party may be circulated, only increased the outrage. And yet there is something comforting about the incident. Because it shows that there are norms of political debate that democrats are ready to defend together. At least in the analog world.

In the digital space, these standards have long since fallen. The hostility to which politicians are exposed on the Internet hardly attract any attention. Hate messages spread so inflationarily in online networks that they are accepted.

The organization Reset has put together a small excerpt from this, user comments under the AfD’s Facebook posts. The worst offenses are followed by violent fantasies and lust for murder, among which the demand “eliminate immediately” is one of the more harmless.

Platforms such as Facebook, Youtube and Twitter overflow with hatred and agitation. But the federal government of all people is slowing down the EU’s efforts to force corporations to take on more responsibility. One would assume that Germany in particular plays a constructive role in the Brussels deliberations.

The Network Enforcement Act (NetzDG) ​​passed by the Bundestag in 2017 and revised in the summer is considered pioneering work in online regulation and was in part a model for the “Digital Services Act” (DSA), which is now being discussed at EU level.

In fact, the opposite is happening. In Brussels, the criticism behind closed doors is that Germany is defining red lines and thus making it more difficult to find a compromise on the DSA. Member States and Parliament are currently voting on their positions, but negotiations are making slow progress. Even a current compromise proposal by the Slovenian Council Presidency, which has been presented to the Handelsblatt, does not meet the German requirements.

Because – unlike in the German NetzDG – there is no specification on how quickly illegal content must be removed from the network. The federal government, however, insists on such a deletion obligation, combined with specific deadlines.

“In my opinion, we need clear rules for hate speech,” says Christian Kastrop, State Secretary in the Ministry of Justice. “It cannot depend on the self-imposed community standards of the platforms whether criminal hate speech is deleted.” The NetzDG is an example of this and works well. Without a deletion obligation and a deletion period, the DSA would become a “toothless tiger”, warns Kastrop.

Two different approaches

There are two different approaches to approaching the problem. Germany has decided to enforce the limits of freedom of expression more quickly with the help of the digital corporations.

The EU has chosen a different path: Instead of subsequently fishing certain content from the Internet, it wants to change the behavior of corporations so that hate messages reach fewer people. There is talk of “systemic regulation” in Brussels. The DSA provides, for example, transparency regulations for algorithms that companies have previously kept as trade secrets.

This would allow regulatory authorities to check in the first place whether the information provided by the platforms on their internal security systems against hatred and agitation is correct. Corresponding risk analyzes are among the most important innovations of the DSA. “The platforms will have to work more intensively on their algorithms,” explains the Danish social democrat Christel Schaldemose, who is responsible for the DSA in the European Parliament.

From Brussels’ point of view, this approach is superior, if only because the Member States have different ideas about where the limits of freedom of expression lie. “There is a lot of terrible content that we want to stop,” says Schaldemose. “Much of it is not illegal, but it is harmful nonetheless. And then it gets complicated. “

Because of the different legal cultures, the NetzDG cannot simply be elevated to an EU standard. Especially since the law is controversial in Germany. The organization Hateaid, for example, argues that the NetzDG has serious shortcomings, that it protects “neither people nor democracy from unleashed digital violence”.

Coexistence of the approaches is excluded

Felix Kartte, an expert at the NGO Reset, accuses the federal government of setting the wrong priorities. “The length of the deletion period is not the main incentive – rather the platform operators must be forced to be careful and transparent,” he says. “Only the concentrated market power of the EU can make corporations comply with legal requirements.”

It remains to be seen whether the Berlin and Brussels approaches can be reconciled. In any case, coexistence is ruled out: According to the DSA draft, the member states should not adopt any additional rules in this area so as not to jeopardize uniformity.

The EU is of the opinion that it has learned from the mistakes that were made in the NetzDG. Since the law was passed, the federal government has had a censorship debate on its neck. Legal concerns have not been allayed either. No sooner had the amendment to the NetzDG been adopted than Google, the parent company of Youtube, filed a lawsuit. This involves a clause that prescribes online platforms to forward certain content to the Federal Criminal Police Office. This regulation is also viewed critically in Brussels, as it could violate data protection regulations.

A divisive power

There is actually consensus on the matter. Platforms like Facebook and Youtube are not neutral mediators of opinions. Their algorithms intensify the effects of hatred and disinformation by spreading them thousands of times and targeting them to susceptible users.

Since the storming of the US Capitol on January 6, 2021, prepared in Internet forums and Facebook groups, there has been a consensus that social media develop a divisive, rebellious power.

This is currently particularly evident in the resistance to vaccination campaigns. In Germany, the authorities are warning of a radicalization of the “lateral thinkers” movement, which is also heavily digitally driven. Holger Münch, President of the Federal Criminal Police Office, had already warned in February that hate crime could reach “democratic-endangering proportions” – “namely when people no longer dare to do their job, their honorary office or their mandate”.

Facebook, on the other hand, emphasizes that it is already successfully combating hate speech. A spokesperson said: “We don’t allow hate speech on Facebook and we invest heavily in AI systems and human review teams to proactively detect and remove it.”

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