Under the German Basic Law, freedom of expression does not cover insults and defamations, or incitement to hatred.
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To the extent that deletion of the illegal content amounts to an infringement, this is justified as it is provided by provisions of general laws under Article 5 II Basic Law. Moreover, deleting illegal content appears as a measured sanction, given that such statements, when made in offline scenarios, often attract criminal prosecution which may result in fines and prison sentences. Conversely, in the second scenario the operator deletes content mistakenly deeming it illegal. Here, the issues become more complicated. The German Federal Constitutional Court has recognised that there is a presumption in favour of freedom of expression whenever it is unclear whether the expression is illegal, at least on topics of public interest.
Notably, this protection extends to public forums, even where access to them is regulated through private law relationships. However, NetzDG notably does not require censorship i. If overblocking does take place as a result of NetzDG, then this would indeed be would be problematic under the German Basic Law. Despite their prevalence in legal writing on the subject, concerns that social media platforms will, when in doubt, delete content rather than risk a fine, appear overstated. Overblocking is likely to arise, so goes the argument, due to the structure of the fines that apply to a systematic failure to delete illegal content.
Hence, a prudent social media platform operator would, when in doubt and confronted with a flurry of complaints, delete content that is questionable , rather than risk a fine. With respect to illegal content, the matter is unproblematic from a constitutional perspective.
For the reasons stated earlier, social media users do not benefit from protections under freedom of expression for illegal content. Again, the more problematic scenario arises when the social media platform operator mistakenly deletes legal content. For the user, this represents an infringement of freedom of expression.
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Indeed, if overblocking is a prevalent phenomenon beyond the occasional erroneous decision of the complaints management infrastructure, it could dissuade users from expressing their views on the platform. This in turn, would render the NetzDG significantly more problematic, and arguably unconstitutional.
The Federal Constitutional Court has found a violation in ordering the publishers of a satirical magazine to pay compensation to an individual for an allegedly defamatory article, chiefly basing their ruling on the risk that it would discourage future exercise of freedom of expression. However, it is not clear that such a chilling effect is inevitable: Notably, and contrary to the impression given by some reports , no fines attach to decisions in individual cases.
It is difficult to see why a social media platform operator, which ultimately requires continuous user engagement and content creation to be profitable, would adopt an overly aggressive deletion policy. An exodus of users would be sure to follow the consistent and arbitrary deletion of legal content, and thus critically undermine the viability of the social media platform.
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It therefore appears more likely that the limited scope of the fines and the inherent economic interests of social networks encourage a more nuanced deletion policy: The argument is that freedom of expression does not necessarily equate to a right to access to any specific means of expression. For instance, a recipient of social security was not entitled to claim the necessary transportation costs to travel to a protest meeting.
Moreover, access to and expression on most social networks is already significantly limited through private law terms and conditions. These grant platform operators wide-ranging powers to delete content or even indefinitely suspend accounts of users for actions that are unlikely to fall afoul of German criminal law. Against this backdrop, it is difficult to sustain an argument that the potential for unintended side effects of NetzDG are a unique or would as such suffice to find it unconstitutional.
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Social media platforms are hardly a free speech paradise: Overall, the NetzDG might after all form part of a civilizing influence on online debate, instead of having a one-sided chilling effect on freedom of expression. The fact that to date social media and online interaction more generally, has created a space for a significantly more laissez faire approach to expression is neither here nor there on the question of constitutionality.
The obligations to delete illegal content are based on well-establish limits to freedom of expression, to which NetzDG chiefly adds a more robust enforcement mechanism. The constitutionality of NetzDG may to a considerable extent rest on an evaluation of the complaints management infrastructure that social media operators develop. Should it consistently, and inevitably, lead to a chilling effect on freedom of expression, then the argument for unconstitutionality grows stronger, but is in my view by no means straight-forward.
Conversely, the Federal Constitutional Court would be less likely to take issue with this novel regulatory approach if the deletion of legal content is limited to individual, non-systematic mistakes.
Ultimately, the goal must be to limit the divide between the online and offline world as far as possible: I am not following here. The view that a suppression of "loud and radical" voices could be a legitimate goal of limitations on freedom of expression was categorically rejected by the Federal Constitutional Court in its Wunsiedel judgment.
Similarly, the ECtHR has regularly held that freedom of expression also applies to views that "offend, shock or disturb the State or any sector of the population". Unless I am misunderstanding this and something else entirely is implied, the goal of shaping public discourse is not a permissible goal of limitations on freedom of expression.
While this obviously does not make other rationales impossible, I do not think that this particular dog is going to hunt. Also, I would question that the fact that social media are "hardly a free speech paradise" can be made into an argument to allow the state to deputize them for purposes that the state itself could not pursue.
By that token, most any restriction on freedom of speech could be legitimized by the simple expedient of putting the onus of enforcement on private actors.
The main problem here is that any single private actor cannot effectively censor anything, due to competition with other private actors; but the state is not limited in such a fashion, as the universality of laws prevents competition in the marketplace of ideas to be an effective escape hatch from potential censorship. Thanks for engaging with my piece and for your thoughtful comments, Katja. A few quick rejoinders, if you will indulge me:. Wunsiedel rejected the suppression of loud and radical, but legal expression the same goes for the ECtHR rulings.
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So it does not really touch on my argument, unless and to the extent that you argue that 'overblocking' will occur. In that case however, I would humbly ask you to show me the evidence of that. This in turn makes the limited attempt of NetzDG to enforce German criminal law online seem far less problematic. Chairman Mike Armstrong because he voiced objection to the amount of violence, pornography and hate speech on the Internet," Taylor said.
Nevertheless, some media outlets and other companies have indicated that they would not support a uniform ratings system. Much of the furor and renewed interest in a ratings system came in the wake of the murder rampage at Columbine High School in Littleton, Colo. Vice President Al Gore summoned a group of industry executives to develop some ideas toward an Internet ratings system, and several legislators on Capitol Hill - notably presidential candidate Sen.
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President Clinton also has called for "Hollywood" to get together and try to settle on a code of conduct for its content, while Republican Congress members have built similar legislation into juvenile crime bills. With fears that the government would stray too far into censorship territory, some industry leaders have started GetNetWise.
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