Free Speech vs. Hate Speech: A Debate in the Age of Social Media
Remember this old adage: “The pen is mightier than the sword”? In today’s Internet age, that classic quip is due for an update, perhaps “The keyboard is mightier than the sword (or an AR-15)” is more appropriate. Based on Germany’s new Network Enforcement Act, or NetzDG, that came into force January 2018, it is fair to say that some states feel that this is the case. From fake news to Russian trolls, the internet, and more specifically social media, is playing an increasingly greater role in our lives. But how do we balance peoples’ right to free speech, with peoples’ right to be protected from hate speech and the potential discrimination, violence or fear that could bring? Is legislating what social media platforms are allowed to allow on their sites the road to equal protections?
Human Rights Watch (HRW) released a report in February against NetzDG, declaring it to be too vague, overly broad, and an instance of Germany breaching its responsibilities to ensure free speech (2018). Looking at the law, it is rather easy to see what HRW means by this. NetzDG applies to any social media platform that is for-profit and has over two million registered users in Germany (Network Enforcement Act, 2017). It then states that these sites are required to report on and remove any content that could be seen to violate one of 22 sections of Germany’s Criminal Code (HRW, 2018; Network Enforcement Act, 2017). Should sites fail to do this they could face fines of over five million euros (Network Enforcement Act, 2017).
This is problematic for a number of reasons. For one, it places the burden of censorship on private companies, who, in being over cautious to avoid a steep fine, could remove people’s content at will (HRW, 2018). Furthermore, as this responsibility is on private companies, there is no judicial oversight in the process of declaring what violates the law or not, the interpretation of the law is being left up to companies, in many cases (given the specification of who this applies to), massive companies that most likely have hundreds-of millions of users (HRW, 2018). This also sets a dangerous precedent for other states. HRW notes in their report that a number of states have already submitted similar laws to their governments, based off of the German law (February, 2018). Many of these states have human rights records that leave HRW, and the international community, wanting, so is it somewhat easy to understand HRWS’s fear that laws like this may be taken to extremes.
Given Germany’s history with propaganda, the difficulties it has faced after opening its borders to refugees, as well as the current discourse used by populist groups in Europe, it is understandable that there is some desire to stem speech that could be used to incite violence or discrimination. Additionally, with the prevalence of social media, the speed at which it is able to convey information and the dark side we have seen with the 2016 US Presidential election and bots it makes sense to want to find some kind of control over the situation. But with a law that is this broad being left to be interpreted by private companies, is there a risk of going too far the other way?
Free speech, or freedom of expression, is protected in a number of rights documents. It is protected under the Universal Declaration of Human Rights’ (UDHR) Article 19, the International Covenant of Civil and Political Rights’ (ICCPR) article 19 and the European Union’s (EU) Charter of Fundamental Rights’ (of the EU) article 11. However, there appears to be some hesitation even in these documents about the absoluteness of this freedom. At a somewhat abstract level, in the UDHR’s preamble it states that a world in which humans “enjoy freedom of speech and belief and freedom from fear and want (is the) highest aspiration of the common people” (1948). This suggests that freedom of speech is not necessarily a realistic goal per se but an ideal we are trying to attain. It also seems to say something similar in terms of freedom from hate speech, if we were to interpret the freedom from fear as including freedom from hate speech (as it can cause fear). This is perhaps a very literal reading of the text but it could be seen as such, as saying that these rights are an ideal not necessarily a practical goal. Then again the same could be said of many, if not most, human rights.
The most concrete example of reticence with regards to free speech is found in the ICCPR’s article 19 paragraph 3 which stipulates that the right to freedom of expression “carries with it special duties and responsibilities” and “may therefore be subject to certain restrictions” (1966). These restrictions are specified as being “provided by law and necessary: for respect of the rights or reputations of others; for the protection of national security or of public order, or of public health or morals” (1966). This, though broad, does provide some guidelines for restricting free speech as well as inversely creating a limited definition of hate speech. Following the ICCPR, hate speech is anything which violates the rights or harms the reputation of others or possibly threatens the public’s security, order, health or morals.
This being said, if we look at NetzDG, it does not actually provide a clear definition of what it calls “illegal content”. It does refer to 22 sections of the German Criminal Code, but this legislation was not entirely written with speech or expressions in mind. The sections referring to dissemination of propaganda (section 86), using unconstitutional symbols (section 86a), or defamation of religions (section 166), among others are rather clear in relation to speech and expression. Conversely, other sections, such as that of insult (section 185) vs. that of defamation (section 186) vs. that of intentional defamation (section 187) (which are included under NetzDG) are somewhat unclear. Section 185, which is concerned with insult, does not even have a definition of what constitutes an insult, only what the punishment would be if you are found to have done so. Also, though these can be serious issues, categorizing them under the same label as inciting hatred (section 130) or forming a terrorist organization (section 129a) (also included under NetzDG) feels a little extreme. There also is no clear jurisprudence on what constitutes what type of “illegal content” and with NetzDG, the creation of that is being left up to social media platforms themselves. Leaving private companies to censor its users means that they would also get to set legal precedence, private companies would determine for the rest of Germany’s citizens what counts as hate speech and what does not. Giving companies that kind of power is maybe too much.
NetzDG also provides other states with more dubious human rights records with a new opportunity to further infringe the human rights of its population. In the February report HRW discusses that a number of states including the Philippines and Russia have submitted similar laws referencing NetzDG as an example (2018). The law that was submitted to the congress of the Philippines would not only fine social media companies for failing to remove false news or information in a timely manner, but also imprison the responsible individuals (HRW, 2018). False news is a problem, but who here defines false news? Is it the government? Are we not just running the risk of the government classifying any news that goes against it as false?
HRW reports that Russia has two laws that have been submitted, one of which would require social media platforms with over two million users “and other ‘organizers of information dissemination’” to remove illegal content “such as information that propagates war; incites national, racial or religious hatred; defames the honour, dignity or reputation of another person; or is disseminated in violation of administrative or criminal law” within 24 hours of receiving a complaint (2018). With the amount of traffic social media platforms see in a day, it is difficult to imagine they would be able to go through all of this within that time frame and not make some missteps resulting in free speech violations. The second law expands this and would fine both “legal entities”, as well as individuals, who in particular could be fined up to $88,700 US, for failure to remove illegal content (HRW, 2018).
In this Internet age in which we live, communication is faster and easier than ever before, and social media plays a big part of this. People need to be protected from those who would use these amazing tools we have created to do them harm, incite violence, or do any such other public bad. However, we need to also balance this with protecting our freedom to express ourselves and our opinions as it is this freedom which allows for the exchange of ideas, and the advancement of our collective knowledge among other things. It is very easy to give up freedoms, but much harder to win them back.
NetzDG is perhaps a good start. We need to be ensuring that the content being published on online platforms does no harm, but the greatest weakness with this law is that the responsibility lies solely with the social media platforms. Companies should have a say as to what their platform is used for and they currently do with terms, conditions, so-called “community-guidelines”, to which users agree to when making a profile. That being said, they should not be given the power to be creating and setting legal precedence as to what is illegal and what is not, that is the job of the courts, of the state to determine. Perhaps if the system were to involve the judicial system, have them involved in the review process and in the decision making of what to remove, it would be better. Also, creating some kind of official appeal process by which people can have their cases reviewed by both the company and the judicial system there would be an added level of transparency and due process so as to not outright censor users.
Some may feel that the state has no place in dictating what can and cannot be said, but information has always been a critical part to how the world works, and today when information can spread like wildfire ensuring that there is some control is not necessarily a bad thing. Some may argue that the saying of the pen and sword is nonsense, but the keyboard is mightier than the sword, because it is with the keyboard that you can convince people to take up the sword in the first place.
About the Author
Emily Mayrand is a fourth year conflict studies and human rights student at the University of Ottawa. Her main areas of interest are conflict resolution, post-conflict peace building, and the European Union.
Bearbeitungsstand (2017). Act to Improve Enforcement of the Law in Social Networks (Network Enforcement Act). Berlin.
Human Rights Watch (2018). Germany: Flawed Social Media Law. Retrieved from https://www.hrw.org/news/2018/02/14/germany-flawed-social-media-law
Official Journal of the European Union (2016). Charter of Fundamental Rights of the European Union (202). Brussels.
Federal Ministry of Justice (1998). Strafgesetzbuches (German Criminal Code). Berlin.
United Nations General Assembly (1966). International Covenant on Civil and Political Rights (2200A). New York.
United Nations General Assembly. (1948). Universal declaration of human rights (217 [III] A). Paris.