“Trying harder”

Facebook CEO Mark Zuckerberg has come to Berlin. The city welcomes him like a state guest. The visit starts with Zuckerberg and his team running through the Brandenburger Tor and along the Reichstag on a snowy Thursday morning. Then press-pictures with chancellery minister Peter Altmaier. Zuckerberg announces to donate computer servers worth 1,1 million Euro to research institutes in Europa. In the evening, Zuckerberg receives the newly created “Axel Springer Award”. The climax on Friday: Zuckerberg speaks to an audience of 1.400 Students.

Legal proceedings against the CEO

Not everyone is happy, though. Many people in Germany criticize Facebook for not taking enough action against hate speech on Facebook, particular against hate speech directed against refugees. Some critics even claim that in this respect Facebook does not comply with German law. Two German lawyers even started a legal proceeding, first against German Facebook managers, then against Zuckerberg.

One thing which is surprising is that even from the perspective of the German government, legal rules seem to be rather soft obligations in the case of Facebook. After his meeting with Zuckerberg, chancellery minister Peter Altmaier was proud to announce that he had reached an agreement according to which “Facebook try harder in the future that that comments in German-language discussion threads to not violate German law.” How submissive! Just imagine someone gets caught by the police while crossing a red light and answers that in future, he will take “try harder” not to act against the rules – instead of simply promising to comply with the rules.

Against Popular CSO-opinion

The German critic of Facebook is remarkable insofar as users and critics take sides with the government and the law. Usual, it’s the other way round. From a civil society-perspective, it is widely claimed that Internet intermediaries such as Facebook should be exempted from liability for any third-party content. Take for instance the Manila Principles, which a coalition of civil society organisations (among them: the Electronic Frontier Foundation (EFF), the Centre for Internet Society India, and the NGO Article 19) launched in Spring 2015. The Manila Principles claim:

“Intermediaries should be immune from liability for third-party content in circumstances where they have not been involved in modifying that content.

and

“Intermediaries must not be required to restrict content unless an order has been issued by an independent and impartial judicial authority that has determined that the material at issue is unlawful.

Both principles are not compatible with German law. In Germany, incitement to hatred as well as defamation are criminal offenses. This includes slander against ethnically or religiously defined groups or individuals. As stated by the Tele Media Act, content intermediaries are not fully exempted from liability in these cases. In case of Facebook, proactive monitoring at least regarding those Facebook-sites where criminal

All this is not compatible with German law. In Germany, hate speech in form of rabble-rousing is a criminal offense. Rabble-rousing includes incitements of violence and even slandering against ethnically or religiously defined groups or individuals. In case of Facebook, proactive monitoring for such content is something with indeed is required by the law. And, yes: Facebook is expected to take down hate-speech content by itself, without that a judge decides upon each instance.

Freedom of Speech: Source of Bias

Just imagine someone gets caught by the police while crossing a red light and answers that in future, he will take “try harder” not to act against the rules.

The German criticism of Facebook shows that the Manila Principles and (likewise resolutions) have a clear bias: Formulated with the intention to protect freedom of expression in social media from interference by authoritarian regimes, they grant content-intermediary a problematically high degree of sovereignty. Taken to an extreme, even companies such as Uber or Airbnb can claim to enjoy the freedoms of intermediaries – with the effect, that these companies successfully circumvent basic legal requirements concerning employment, public transportation and housing (see Netopia’s review of Tom Slee’s book about the sharing economy. Similar with Facebook: if the company would have complied with (German) legal requirements to proactively monitor content for hate speech, it could hardly have grown as effortless as it has in the recent past. This is also the justification which the German lawyers give for demanding a payment of 150 Million Euro to the German state from Facebook. These are the revenues, they claim, which Facebook achieved only because it did not comply with legal standards of control. The costs associated with personal for controlling content and the slower growth of Facebook because of these costs, the lawyers, explain, would have made Facebook about 150 Million Euro poorer.

The Manila Principles are biased also in another respect: Talking about rules for Internet intermediaries they do not at all mention issues of privacy and data protection (see UNESCO Report Fostering Freedom Online: The Role of Internet Intermediaries, 2015: 157). Also, they do not address the problem of Intermediaries proactively promoting certain content (with the help of Big Data analysis tools) – thus heavily influencing public opinion (see Netopia-report The Citizens’ Internet p. 31).

Two-Edged Sword

Where does all this leave us? First of all, the discussion in Germany clearly demonstrates that there is no such thing as one legitimate civil-society perspective when it comes to regulation of content-intermediaries. Regional differences matter. More specifically, freedom of expression really is a two-edged sword: Granting or demanding freedom from governmental interference might be something that many of us would support in countries such as China or even India, where, in 2013, Facebook restricted content in 4675 cases, following “law enforcement officials and the India Computer Emergency Response Team under local laws prohibiting criticism of a religion or the state” (UNESCO Report Fostering Freedom Online, 2015: 140) We might not like this. But granting intermediaries such as Facebook a power which exempts national legislation would also make it impossible to claim Facebook responsible for hate speech against refugees in Germany.

Resolutions such as the Manila Principles have no legal power. Still, they do play an important role in public opinion formation, especially within civil society. We should watch out that we do not, under the header of civil rights, align ourselves to rigorously with the interests of Internet companies, be it Facebook, Google, AirBnB or Uber. It could well be against our own interest.

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