Free speech and filters: Germany on the right track with new 'hate speech' law

Alexandra Borchardt
Firms cannot be allowed to profit from damaging content, while shrugging off responsibility for consequences.
Alexandra Borchardt

GERMANY’S Network Enforcement Act — according to which social-media platforms such as Facebook and YouTube could be fined 50 million euro (US$63 million) for every “obviously illegal” post within 24 hours of receiving a notification — has been controversial from the start.

After it entered fully into effect in January, there was a tremendous outcry, with critics from all over the political map arguing that it was an enticement to “censorship.”

So, is this the beginning of the end of “free speech” in Germany?

Of course not.

To be sure, Germany’s Netzwerkdurchsetzungsgesetz (or NetzDG) is the strictest regulation of its kind in a Europe that is growing increasingly annoyed with America’s powerful social-media companies. And critics do have some valid points about the law’s weaknesses.

But the truth is that the law sends an important message: Societies won’t stay silent while the citizens are exposed to hateful and violent speech and images — content that, as we know, can spur real-life hate and violence.

Refusing to protect the public, especially the most vulnerable, from dangerous content in the name of “free speech” actually serves the interests of those who are already privileged, beginning with the powerful companies that drive the dissemination of information.

Speech has always been filtered. In well-functioning societies, everyone has the right to express themselves within the boundaries of the law, but no one has ever been guaranteed an audience. To have an impact, citizens have always needed to appeal to the “gatekeepers” who decide which causes and ideas are relevant and worth amplifying.

The same is true today, except that the gatekeepers are the algorithms that automatically filter and rank all contributions.

Of course, algorithms can be programmed any way companies like, meaning that they may place a premium on qualities shared by professional journalists: credibility, intelligence, and coherence.

Free speech and filters: Germany on the right track with new 'hate speech' law

Alexandra Borchardt

Rewarding the noisiest

But today’s social-media platforms are far more likely to prioritize potential for advertising revenue above all else. So the noisiest are often rewarded with a megaphone, while less polarizing, less privileged voices are drowned out, even if they are providing the smart and nuanced perspectives that can truly enrich public discussions.

If the algorithm doesn’t do the job of silencing less privileged voices, online trolls often step in, directing hateful and threatening speech at whomever they choose. Women and minorities are particularly likely to be victims of online harassment, but anyone may be targeted.

Victims of online harassment often respond with self-censorship, and many, with their sense of security and even self-worth eroded, remove themselves from social media altogether.

In this sense, by offering blanket protections in the name of “free speech,” countries actually privilege hate speech. But why should a victim’s rights count less than those of their bullies?

Vulnerable voices

In the age of algorithms, government must, more than ever, ensure the protection of vulnerable voices, even erring on victims’ side at times. If already-vulnerable people are besieged by mobs of extremists and aggressors, it is entirely understandable that they will fear speaking up. If that happens, “free speech” is dead.

Not all NetzDG critics dispute this assessment: Some agree that the speech of the vulnerable does need extra protection. But they argue that the necessary protections are already in place. After all, severe insult and incitement to hatred and violence are prohibited, and perpetrators can be prosecuted.

But, in the digital age, speed is decisive. The technology is instant, and online posts can be shared widely within minutes. Institutions move rather slowly — much too slowly for police and the courts to be effective in fighting trolls and online hate. And many victims are not in any position to hire a high-quality lawyer.

Hate speech and other kinds of dangerous and illegal content must be attacked at the source.

On one hand, there is a need for increased media literacy on the part of consumers, who need to be taught, from a young age, about the real-world consequences of online hate speech.

On the other hand — and this is what the NetzDG attempts to ensure — social-media platforms must ensure that their products are designed in ways that encourage responsible use.

But this is no quick fix.

On the contrary, it demands a fundamental rethink of business models that facilitate and even reward hate speech. Firms cannot be allowed to profit from damaging content, while shrugging off responsibility for consequences.

Instead, they must revise their algorithms more effectively and scrupulously to flag content that humans should monitor and assess, while entrenching in all of their business decisions an awareness of their responsibility in the fight for truly free speech.

This may contradict the straightforward business logic of doing whatever maximizes profit and shareholder value. But it is, without a doubt, what is best for society. The German government is right to push companies in the proper direction.

Alexandra Borchardt is Director of Strategic Development at the Reuters Institute for the Study of Journalism. Shanghai Daily condensed the article. Copyright: Project Syndicate, 2018.

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