German Social Media Law Threatens Free Speech

On Wednesday, the German cabinet approved a draft law that would fine social media companies for failing to remove hate speech and other content that is illegal under German law. The proposed law gives social media companies 24 hours to delete or block obviously illegal content and seven days to respond to cases that are less clear-cut. Companies can be fined up to 50 million euros ($53 million) for not complying with the law.

Germany’s concern over the effects of hate speech and fake news propagated online is legitimate. Increasing awareness of the role that hate speech and fake news played in the U.S. presidential election has raised alarm bells in democratic capitals across Europe. Late last year, fearing the impact of hate speech and fake news on their own election, German officials indicated support for toughening legislation.

But Germany’s response is a dangerous abridgement of free speech rights.

The proposed law requires that private companies adjudicate the legality of content, which they are not well-suited to do. Liability of intermediaries—the social media companies—incentivizes them to restrict content. Moreover, they will do so without the due process protections inherent in a legal process, such as the right to challenge a decision, and without the transparency requirements that the government must follow. Germany in effect is turning over responsibilities of its courts to private companies, weakening protections for the speaker.

This proposed law will ultimately undermine efforts to counter extremism in all its forms, including extremism rooted in hateful ideologies. Overbroad attempts to suppress speech, whether by the government or private companies, tends to drive those sympathetic to such ideas underground, likely reinforcing their ideology. Moreover, clamping down on speech in one platform will just change the means of dissemination. When we clamp down on free and open discussion, we risk feeding into extremism.

Human rights, including free expression, aren’t just essential to functioning democracies, but to safe and secure societies. While controversial, protecting the expression of even the most disfavored views is how we ensure that free speech is protected for all, including the most marginalized groups.

The proposed law will also embolden authoritarian regimes that suppress legitimate speech and dissent under the guise of countering extremism. These governments often misuse anti-terrorism laws to target the speech of minority groups or legitimate political opposition.

The German parliament should reject the draft social media law. The law is inconsistent with human rights principles and threatens the right to free expression. Germany has led the region through the refugee crisis, financial emergencies, and shakeups within the European Union, and it must remain a strong champion of human rights, including the right to free expression.