I think we forget sometimes as Americans that the First Amendment doesn’t cover the whole world. The American left may be attacking free speech in this country, but they don’t have much hope of succeeding at the moment, at least, given that we still have a slight conservative majority on the Supreme Court that’s willing to defend the Constitution (most of the time).
The rest of the world is an entirely different story, and that could present a problem for social media companies who understandably wish to operate on a global basis. And the problem is no longer just theoretical. Germany has just made it very real:
German lawmakers have passed a controversial law under which Facebook, Twitter, and other social media companies could face fines of up to €50 million ($57 million) for failing to remove hate speech. The Network Enforcement Act, commonly referred to as the “Facebook law,” was passed by the Bundestag, Germany’s parliamentary body, on Friday. It will go into effect in October.
Under the law, social media companies would face steep fines for failing to remove “obviously illegal” content — including hate speech, defamation, and incitements to violence — within 24 hours. They would face an initial fine of €5 million, which could rise to €50 million. Web companies would have up to one week to decide on cases that are less clear cut.
Justice Minister Heiko Maas and other supporters of the bill have argued that it is necessary to curb the spread of hate speech, which is strictly regulated under German law. But digital rights activists have broadly criticized the law, saying it would infringe on free speech, and that it gives tech companies disproportionate responsibility in determining the legality of online content.
“Experience has shown that, without political pressure, the large platform operators will not fulfill their obligations, and this law is therefore imperative,” Maas said in an address Friday, adding that “freedom of expression ends where criminal law begins.”
“We believe the best solutions will be found when government, civil society and industry work together and that this law as it stands now will not improve efforts to tackle this important societal problem,” a Facebook spokesperson said in an email statement. “We feel that the lack of scrutiny and consultation do not do justice to the importance of the subject. We will continue to do everything we can to ensure safety for the people on our platform.”
Clearly, the biggest problem here concerns concept of “hate speech,” since it apparently leaves it to government to define what that is. And if Facebook is going to operate on a global basis, but the government of one nation can fine it whenever someone posts “hate speech” as defined by that one government, how can Facebook reasonably be expected to function?
(I realize this includes Twitter too, but I’m not going to keep mentioning Twitter because I hate it. Uh oh! Hate speech!)
Come to think of it, how far do you take this? What if a Facebook post doesn’t actually include any “hate speech” in its own right, but links to an article that does in the opinion of the German government? Or what if the article doesn’t, but some other article on the same site does? How far do you go in enforcing the ban on “hate speech”?
And of course, there’s also the problem of what constitutes hate speech. Does this article qualify? There’s not a hateful word in it, nor was there a hateful thought in my heart when I wrote it. But you know that doesn’t matter to the thought police. We posted the article on Facebook and the traffic it generated was phenomenal. Could we do the same thing now? Or would Facebook delete it for fear of getting fined by the German government?
There is also the question of just what constitutes “fake news”. A story on some weird site that claims Paul Ryan and Chuck Schumer are aliens? Clearly. (There’s no way they both are.) But what about a totally false CNN story about Trump/Russia “collusion” that ends up having to be retracted because it’s 100 percent wrong? Why isn’t that fake news? Or a New York Times editorial that attemps to link Sarah Palin to the shooting of Gabrielle Giffords? That’s totally false too. Have at it, German government! Let’s impose those fines!
I want to be optimistic that the legal rights of social media outlets will prevail here, but remember, there is no First Amendment outside the United States. I’m having a hard time coming up with a reason I should be optimistic that this, or some future attempt by some other country, won’t totally change the way we use social media - and not for the better.