Free Speech German court overturns Facebook 'censorship'

A new German law, in effect since January, says social media giants must police hate speech on their own platforms. But a test case now before a Berlin court says they're already getting it wrong.
The Germans thought they could fix it.

A German court has stepped into the murky issue of free speech on social media. It has prohibited Facebook from deleting a comment and blocking a German user account that Facebook had judged to violate community norms.

As Facebook CEO Mark Zuckerberg was being grilled by Congress over the leak of confidential user information, a Berlin court issued a preliminary injunction in the first test case of Germany’s Network Enforcement Law, which came into effect on January 1.

Believed to be one of the toughest restrictions anywhere, Germany's Network Enforcement Act – NetzDG in the German abbreviation -  will make social media sites with at least 2 million users in Germany, such as Facebook and Twitter, pay fines of up to €50 million ($61 million) if they fail to delete posts that violate German legislation about hate speech.

Even as the law was being formulated, experts were saying that it would outsource censorship to private companies and infringe on civil liberties.

In response, Facebook set up teams in Berlin and Essen to review complaints about hate speech and delete comments and posts that are believed to violate the hate speech rule. But, even as the NetzDG law was being formulated, experts were already saying that it would be difficult for the world's tech giants to define exactly what hate speech was. Some described it as outsourcing censorship to private companies and infringing on civil liberties.

This case, before the Berlin court, will only add to the debate about the effectiveness of the German law. It revolves around one Facebook user, not identified in court, who posted a newspaper article about Hungarian Prime Minister Victor Orban’s controversial remarks on immigration. The user added the comment that “the Germans are becoming more and more stupid. No wonder, as they are being clobbered daily by left-wing media with fake news about skilled workers, declining unemployment or Trump.”

Facebook deleted the comment, finding it was against their community standards, and blocked the user’s account, prompting the law case in Berlin's district court. However now the court has decided that Facebook was wrong. The user’s account was ordered unblocked and Facebook was told not to delete the comment again.

Joachim Steinhöfel, the Hamburg lawyer who represented the Facebook user in question, said he believes the new law is unconstitutional and is being arbitrarily enforced. He has been gathering examples of what he describes as Facebook's infringements since 2016, where the platform deletes content that doesn't break any rules and then leaves things like murder threats online.

Ironically the legal case is forcing Facebook to defend its implementation of a law that it initially opposed.

“The Constitutional Court puts a high bar on the freedom of expression,” Mr. Steinhöfel told Handelsblatt. “Facebook cannot cut users’ words.” The attorney argues that because Facebook is a platform for public discourse, that must invariably lead to controversy. “ If you have such a business model, you also have to be able to live with the consequences. And that means first of all, employing a sufficiently knowledgable staff.”

Ironically the legal case is forcing Facebook to defend its implementation of a law that it initially opposed. The company declined to comment.

It wasn’t clear what effect the court ruling would have on the Network Enforcement Law itself. The government could decide this is a one-off case and decide not to pursue it in higher courts. Steinhöfel said he was prepared to take the case all the way to the Federal Court of Justice in Karlsruhe, the country’s supreme court in legal matters, if necessary.

It's not been a great week for Facebook in Germany, as it has also came under fire in Europe for its leak of user information. German Justice Minister Katarina Barley said the company would face severe penalties in the future if it happened again and authorities also called on Facebook to disclose all of its secret algorithms to the government.

Christof Kerkmann writes about technology for Handelsblatt and Johannes Steger covers companies and markets. To contact the authors: [email protected] and [email protected].