Mimesis Law
22 February 2017

Free Speech and Fake News in Europe

December 23, 2016 (Fault Lines) – You’ve probably heard of “fake news,” a story that emerged in the wake of Hillary Clinton’s loss. The claim is that the establishment media’s efforts to provide impartial coverage were sabotaged by propagandists – including Russian secret agents, Macedonian teenagers and American white supremacists – who spread lies on social media and alternative news sites, turning uninformed voters against Hillary and costing her the election.

To combat “fake news,” Facebook, itself no stranger to controversies about suppressing conservative viewpoints, is teaming up with PolitiFact to police content for accuracy. That’s raised a few eyebrows, given that PolitiFact, which shares its media philosophy with fellow news-explainer site Vox, has a pronounced left-wing tilt to its coverage.

But while the debate rages, on Facebook and Twitter, over whether Facebook’s move represents a crackdown on conservative users or constitutes censorship or what have you, the “reluctant leader” of the European Union has quietly been devising its own fix for the “fake news” problem.

It didn’t take long for the concept to go from America to the Continent. And it was a yuge success in Germany, which, it recently emerged, gave a lot of taxpayer money to the Clinton Foundation at the height of the election. Then, too, Merkel’s administration has been cracking down on critics of her refugee policy, including by arresting people and raiding their homes over posts on social media. But unlike that of its soft-hearted American counterparts, Germany’s solution involves the state telling tech companies to scrub dissenting views – or else.

Next year, and before elections in the fall, Germany’s increasingly unpopular federal government will take up a bill that’d let it fine social networks like Facebook $500,000 for each day they leave a “fake news” post up without deleting it. (There’s a separate fine for each post, so anything other than perfect compliance would be impossibly expensive.)

While anyone will be allowed to report “fake news,” Facebook & Co. will get a 24-hour grace period to investigate and verify any claims before the fines come due. If a post gets deleted, the company has to release a correction. And the bill would require tech companies to set up full-time censorship “legal protection” units on German soil to facilitate people’s complaints.

Needless to say, this kind of system provides a strong incentive for social networks to delete content just to be on the safe side. (Will Zuck or @jack risk millions over your “the cops ran over my dog” post, on the off chance it turns out to be true?) It enshrines an especially nasty form of the heckler’s veto into law. And I’ll leave it to the folks at Techdirt to explain how burdensome this move would be for tech companies, and how it’s of a piece with the rest of Germany’s censorious and protectionist approach to regulating the internet.

Rather, the interesting question for people into criminal justice is how this kind of law would be implemented. As Fault Lines readers know, American cops and prosecutors aren’t always perfect when it comes to applying the laws they enforce on others to themselves and their friends.

Sadly, Germany’s legal landscape invites this kind of abuse. The country has a national constitution, but no substantive right to free speech. And as Colin Cortbus explains at Popehat, a thicket of remarkably vague and repressive speech laws has sprung up to fill the gap. In a nutshell, anything that hurts someone’s feelz is against the law, and truth is no defense.

Add in Germany’s civil-law approach to criminal justice, which doesn’t allow for American-style jury trials and lets judges make subjective rulings without reference to caselaw, and the government has a lot of freedom to put public servants’ feelz before other people’s when it decides whether to go after someone for giving offense. As with blasphemy laws the world over, Germany’s enforcement of its speech laws has proven, in practice, to be wildly unequal.

So it is that Germany’s economy minister can flip off hecklers with impunity and have the media treat it as a joke, while people who use insufficiently formal pronouns to address cops are prosecuted and fined. And it’s easy to punish people for inconvenient political speech, as comedian Jan Boehmermann learned when he read a satirical poem about the Turkish president on state-run TV at a time when the government was courting Turkey’s help with the refugee crisis.

Assuming the feds pass their bill and social media companies are forced to police user content for whether it conforms to the government’s notion of truth, will they do their unwanted duty without fear or favor? If they’ll shut down people’s social media posts and make corrections when they turn out to be wrong, even deliberately misleading, will they do the same to the government? A Twitter imbroglio that broke out yesterday shows how difficult that might be in practice.

Several days ago, a terrorist drove a hijacked truck into a Berlin Christmas market, killing 12 and injuring another 50. The driver was able to escape, and Berlin police are currently engaged in a massive manhunt. On December 21, a German paper, Die Welt, reported that police had told it a SWAT team was raiding two Berlin apartments in connection with the search.

After the article was published, Berlin PD spokespeople took to Twitter, denied the story was true and called Die Welt out for spreading fake news. In response, Die Welt restated that it’d gotten its info directly from a police source. But a couple hours later, Berlin PD tweeted what appears to be an explicit acknowledgement that it lied to the public about the raid.*

Apart from the obvious things to say about this, like the fact that the cops’ claim about fake news itself constituted fake news and how Die Welt’s objection – and the cops’ retraction – got far fewer retweets than the original lie, what happened raises a number of fascinating questions in light of the proposed law.

1) Would Twitter delete the cops’ tweet and post a correction? If not, would the federal government fine it?

2) If Berlin PD hadn’t acknowledged its lie, would Twitter delete Die Welt’s tweet linking to its article and embarrass a major national newspaper?

3) If it hadn’t been Die Welt challenging the cops’ claim, but a random nobody, would Twitter delete their tweets? Would it allow a random nobody to disagree with “fake news” allegations coming from the government, or would it just start deleting?

Is there a good way out for a social media company trapped between two high-profile users who disagree about the truth? If one of those users is the government, is anyone allowed to dispute its narrative? Is there a hierarchy of access to social media and voicing one’s opinion, with the state at the very top, when the government orders companies to censor in response to allegations of falsehood?

The holiday season is upon us, and it’s a traditional time to count your blessings and reflect on what you’ve got. Granted, things in the US aren’t perfect for proponents of free debate: it’s unfortunate that Facebook wants to filter user content through a partisan lens, and it’s disappointing that so many people are applauding this.

But at least you can always not use Facebook and share your news elsewhere. There are places that lack meaningful protections for free speech, and their governments are more than happy to tell the electorate what is true and what to believe. Meanwhile, as the Berlin cops’ example shows, they’re free to hold themselves to a lower standard of honesty.

The fact that you can see this article and decide for yourself whether to agree with it is a remarkable thing, and something that sets America apart from much of the rest of the world. Cherish it, guys. Happy holidays.

*Non-literal translation: “Sadly, it seems someone from the department who wasn’t allowed to talk to the press has confirmed the raid happened.”

4 Comments on this post.

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  • Leroy
    23 December 2016 at 10:41 am - Reply

    This is simply an extension of Existing Law (Berichtigungsanspruch) in Germany that currently overs traditional news sources, to now also include internet ones. Applying existing regulation to the internet is not all that controversial.

    https://de.wikipedia.org/wiki/Berichtigungsanspruch_(Medienrecht)

    It is also worth noting that there is a due process component to this law. And only after that process is completed, is the 24 hour timer to remove and correct started.

    It seems that those who profit from bald faced lies are all up in arms over the fact that proven untrue statements may be forced to be corrected.

    And, the painting of Politifact as a leftist organization is astonishing tone deaf. They are quite happy to call a lie, a lie regardless of source. Hitting up their front page I see large number of leftist statements judged as False or Pants on Fire. Here are some examples:
    http://www.politifact.com/texas/statements/2016/dec/21/if-you-only-news/news-entertainment-service-incorrectly-says-texas-/
    http://www.politifact.com/punditfact/statements/2016/dec/21/politiconocom/fake-news-site-says-sarah-palin-boycott-mall-ameri/
    http://www.politifact.com/punditfact/statements/2016/dec/21/usa-snich/website-hypes-long-shot-theory-about-courts-replac/

    And, as we all know reality has a well know liberal bias.

    • David Meyer-Lindenberg
      23 December 2016 at 11:48 am - Reply

      This is simply an extension of Existing Law (Berichtigungsanspruch) in Germany that currently overs traditional news sources, to now also include internet ones.

      It’s nothing of the sort, primarily because the content at issue isn’t provided by the companies that have to shoulder the regulatory burden, but by their users.

      It is also worth noting that there is a due process component to this law. And only after that process is completed, is the 24 hour timer to remove and correct started.

      No. Because the bill has yet to be drafted, all we have to go on is senior politicians’ comments to the press on what they want the law to do. What’s been proposed so far is a 24-hour grace period to investigate, remove and correct.

      And, the painting of Politifact as a leftist organization is astonishing tone deaf. They are quite happy to call a lie, a lie regardless of source.

      I understand this is a bone of contention for partisans in America, but as someone without a personal stake in the election, PolitiFact’s coverage strikes me as just as bad as conservatives claim. Agenda politics masquerading as neutrality.

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