On January 1, 2018, a new law went into effect in Germany with the aim of curbing ‘fake news’ and hate speech online. The Act for the Improvement of Law Enforcement on Social Networks – thankfully shortened in common parlance to the Network Enforcement Law (Netzdurchsetzungsgesetz) targets social media such as Twitter and Facebook, seen as the main conduits of online hatred.

Banning “obviously unlawful contents”

The piece of legislation is a pet project of Germany’s Social Democratic Minister of Justice, Heiko Maas. When proposing the law, his Ministry argued that on Facebook only 39 per cent of posts or comments liable to legal prosecution were deleted after users had signalled them to the network’s administrators. On Twitter, only 1 per cent of tweets punishable under German criminal law were actually removed.[1] https://www.bmjv.de/SharedDocs/Pressemitteilungen/DE/2017/03142017_Monitoring_SozialeNetzwerke.html

This, together with the suspected large-scale influence of so-called ‘fake news’ during the 2016 US election campaign, led Maas to act. Under the new law, social networks need to delete or block “obviously unlawful contents” within 24 hours of them being posted.

In more complex circumstances, social network operators have seven days to decide; and the users who authored the post under investigation have the opportunity to defend themselves in ambiguous or contentious cases before any content is deleted. In case of repeated failure to uphold the new law, network operators run the risk of financial penalties of up to 50 million Euros.

von Storch’s tweet on ‘Muslim barbarians’

Already on January 1, the law created a first prominent case of contention when Beatrix von Storch, one of the right-wing populist AfD party’s deputy chairs in the German Bundestag, saw one of her tweets put under investigation.

On New Year’s Eve, the Cologne police department had tweeted its best wishes for 2018 in German, English, French, and Arabic. It had also issued information brochures under the tagline “Celebrate peacefully, show respect” – again in German, English, French, Arabic, and Farsi.[2] https://koeln.polizei.nrw/artikel/silvester-in-koeln-friedlich-feiern-respekt-zeigen

Von Storch took issue with the fact that the police were putting out an Arabic-language tweet. Referring back to the mass sexual assaults of New Year’s Eve 2015/2016, when mainly North African men had attacked women on a central square in front of Cologne cathedral, von Storch tweeted:

What the hell is going on in this country? Why is an official police page from NRW [North-Rhine Westphalia, the state in which Cologne is located] tweeting in Arabic. Do you think you’ll appease the barbarian, Muslim, gang raping mobs of men like this?

Incitement to hatred

Responding to this, the German police pressed charges on account of ‘incitement to hatred’ (Volksverhetzung or ‘instigation of the people’ in German legal parlance). And, basing itself on the new law against online hate speech, Twitter temporarily suspended von Storch’s account. While the account has since been restored, the relevant tweet has been deleted.[3] http://www.spiegel.de/politik/deutschland/koelner-polizei-stellt-strafanzeige-gegen-beatrix-von-storch-a-1185793.html

Von Storch has a long history of making hard-line comments. During the AfD’s earlier days, she once stated that she wanted German police to shoot at women and children migrants seeking to cross the German border. (She then backtracked and claimed that she had ‘slipped’ on her computer mouse when supporting this demand.)[4] http://www.spiegel.de/politik/deutschland/afd-beatrix-von-storch-wird-im-netz-verspottet-a-1076209.html

Calculated outrage

Beatrix von Storch is thus a leading exponent of the honed populist technique of causing deliberate outrage to garner media attention – and to advance a hard-headed political agenda in the wake of the self-generated scandal.

Thus, she is perhaps the paradigmatic target of the new law. Yet her case also demonstrates the limitations and dangers inherent in this attempt to curb online hate speech in this manner.

Scoring an own goal?

Critics of the law have consistently castigated it for placing law enforcement in the hands of private corporations, with little to no control. Given the importance of online fora for public debate, they see the new law as a threat to freedom of speech. (Twitter itself has not issued any statement elucidating how exactly it handles cases of suspected hate speech.)[5] https://netzpolitik.org/2018/kommentar-das-recht-auf-den-tweet/

Unsurprisingly, von Storch immediately presented herself as the victim of the political establishment’s censorship efforts. “This is the end of the rule of law”, she announced melodramatically.[6] http://www.faz.net/aktuell/politik/inland/netzdg-beatrix-von-storch-und-alice-weidel-haben-twitter-aerger-15369259.html?GEPC=s3

Beyond all legal uncertainties surrounding the new law, this casts into sharp relief its potential political drawbacks. While the law set out to reduce discriminatory hatred and right-wing populist power, it might end up enhancing both.

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