Germany Willing to Fine U.S. Companies to Censor What People Say Online

If you were financially responsible—to the tune of millions of dollars—for the content that users of your online platform posted online, you might take a bit of a dim view of giving them a lot of leeway in what they had to say.

That is apparently what the government of Germany is hoping for. Germany does not share America’s broad view of free speech. Like several European countries, it has laws and criminal penalties for hate speech and a broader conception of what an incitement to violence is (America tends to require an actual discernable threat). As part of the European Union, Germans are also able to invoke the online “Right to Be Forgotten,” forcing online search engines to delete links to content about them that may be true, but is embarrassing or casts them in a bad light.

Germany’s now working to expand its authority to order online censorship by holding social media companies like Facebook and Twitter financially liable for user content that violates its restrictions on speech. And it’s not a slap on the wrist either. Chancellor Angela Merkel’s cabinet has approved possible fines of more than $50 million if social media companies don’t respond quickly enough to remove speech that violates their laws. They have 24 hours to remove content calling for criminal behavior and a week to remove other types of “illegal” speech.

Besides potentially resulting in social media companies censoring content by non-Germans posted outside of Germany, also puts these companies in the awkward position of having to determine what is and isn’t legal to say under German laws, as though they were part of the country’s judicial branch. They are uncomfortable at the idea, Reuters notes:

A spokesman for Facebook, which has 29 million active users in Germany – more than a third of the total population – said the company was working hard to remove illegal content, but expressed concern at the draft law.

“This legislation would force private companies rather than the courts to become the judges of what is illegal in Germany,” he said, adding that Facebook’s partner Arvato would employ up to 700 staff in Berlin for “content moderation” by year’s end.

A spokesman for Twitter declined to comment on the legislation, but said the company had made a number of changes in recent weeks, including adding new filtering options, putting limits on accounts it had identified as engaging in abusive behavior and stopping those users from creating new accounts.

Given the financial risks involved here, it would not and should not be surprising if speech considered legal even by German standards ends up getting censored. Why take the risk?

Before dismissing this all as just a German law-and-order quirk, note that there has been pressure across the European Union to force social media companies to engage in more overt censorship. German Justice Minister Heiko Maas said he wants to take this proposed law (it still needs to be approved by Germany’s parliament) and push it through all of the European Union.

And while America may have different attitudes and laws protecting free speech, it still nevertheless has problems with its own broadly written laws that authorize censorship. America’s federal laws designed to eliminate online piracy and copyright violations are frequently misused to censor online content that is actually constitutionally protected criticism.

Furthermore, while we also have regulation shielding online companies from criminal and civil liability over much of the content written or posted by users (not the company itself), even those regulations are threatened all in the name of “public safety.” As Elizabeth Nolan Brown has reported, activists who believe America has a sex trafficking problem want to compromise these regulations in order to hold web companies and social media platforms potentially responsible.

And finally, before assuming “it can’t happen here,” a New York state legislator is attempting to bring the European Union’s “right to be forgotten” rules of online censorship to the United States.