Inverting The Expected Order Of Things, German Court Orders Facebook To Reinstate 'Offensive' Content

from the just-keeping-things-unpredictably-dystopian dept

Wed, Apr 18th 2018 3:23am — Tim Cushing

Germany's ridiculous hate speech law continues to wreak havoc in the stupidest ways possible. Giving social media companies 24 hours to remove poorly-defined "offensive" content has resulted in proactive removals targeting anything marginally questionable. Official complaints aren't much better. Government demands for removal have been no less idiotic than proactive deletions by Facebook and Twitter.

It's a bad law. The only way bad laws can be followed is badly. Facebook is dealing with something new, thanks to its adherence to its own content policies. It's an argument over deleted content, but the push/pull tension has been reversed.

A Berlin court has ordered Facebook not to block a user and not to delete a comment made by that user, even though it breached the social network's community standards.

This order follows a legal complaint by Facebook user "Gabor B." The court will still allow Facebook to argue in its defense, but it wants the content reinstated while this is sorted out. Facebook, following its internal content rules, decided Gabor B's insults weren't the sort of content it was willing to host.

"The Germans are becoming ever more stupid," Gabor B's comment, posted in January, read. "No wonder, since they are every day littered with fake news from the left-wing Systemmedien about 'skilled workers', declining unemployment rates or Trump."

Systemmedien can be inelegantly translated as 'system media'. The phrase carries echoes of the term Systempresse, or 'system press', that was used by the Nazis before they came to power.

Gabor B had his post deleted and his account suspended. He took his complaint to the German court which now wants Facebook to violate its own policies to restore Gabor B to his rightful position of truth-to-power-speaker or whatever. This isn't what's expected from the German government, which has spent much of its time trying to find new ways to limit free expression by Germans.

But there is internal consistency, even if it's not readily apparent. The German government feels its laws trump Facebook's policies. This applies even when Facebook's content policies are more restrictive than German law. That's why it demands takedowns of posts violating its speech laws (but not Facebook policy) and demands the restoration of posts violating Facebook policies (but not German law). Unfortunately, applying German speech laws consistently is almost as terrible as applying them inconsistently. In both cases, Facebook moderation policies no longer matter.

The only way out of this mess is to handle this with logic. If a German Facebook user has violated a German law, the German government can go after the user, not the platform hosting the content. Instead, the law holds Facebook responsible for users' posts -- to the tune of €50m a violation. The law prompts overzealous deletion and the courts seem willing to punish Facebook for trying to remain in compliance. Facebook's more stringent moderation standards are a natural response to multiple governments with different free speech ideals all pushing their own agendas. Punish the wrongdoers, not the intermediaries, and you won't have these problems.

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Filed Under: gabor b, germany, hate speech, insults, offensive content, social media
Companies: facebook

38 Comments

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Anonymous Coward, 18 Apr 2018 @ 3:47am

At 5O million euros per violation, that's enough to make any website quiver. Why is the German government so interested in keeping this comment up, when there are likely many others taken down that we didn't hear about?

Why do governments expect immediate, accurate action from online platforms to enforce laws when law enforcement in the physical world cannot punish (or even account for) all criminals either?
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- Anonymous Coward, 18 Apr 2018 @ 4:19am
  
  Re:
  Cause they can. You expect too much from the government. They're just looking to fill their bags and mouths and to stomp out anyone standing in the way of their filled bags and mouths.
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- Anonymous Coward, 18 Apr 2018 @ 5:42am
  
  Re:
  They probably want to keep it up because it references the Nazis. It's a neat catch-22 in Germany, because if you mention the Nazis and then have your speech suppressed, it's damn easy to call those who suppressed your speech a Nazi, and nobody wants to be accused of that in Germany.
  
  Not replying to myself, but I am replying to the room next door across the LAN. Hi! *waves*
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Richard (profile), 18 Apr 2018 @ 4:23am

Germany - not like the US
Much of this argument has in the past revolved around US free speech laws.

However this is Germany - and US corporations should expect that the rules (and the culture) may be quite different.

In the US the law inteferes comparatively little in the way that privately owned platforms moderate their users' content.

Germany has taken a different approach.

There are problems with either approach - when corporations become quasi-monopolies their ability to regulate speech creates issues that are similar to government censorship.

The German approach sidesteps this problem, whilst creating others.
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- Anonymous Coward, 18 Apr 2018 @ 6:33am
  
  Re: Germany - not like the US
  The German approach sidesteps this problem, whilst creating others.
  
  It sidesteps quasi-government censorship by using actual government censorship...
  
  That's blatantly the same problem, except that quasi-monopolies at least have alternatives (and, you know, can't throw you in jail).
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  - Richard (profile), 18 Apr 2018 @ 1:25pm
    
    Re: Re: Germany - not like the US
    One could argue that if there is to be any censorship it should be from the government - because that could guarantee due process.
    
    As those who have fallen foul of private "censorship" from youtube, facebook et al will tell you there is frequently no viable avenue available to seek redress.
    
    Quasi monopolies may have alternatives - but in practice these alternatives are usually dramatically less effective than the "monopoly" provider - rendering your point moot.
    
    It's rather like saying that being on the no-fly list is not a problem because you can always go by ship.
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    - Anonymous Coward, 18 Apr 2018 @ 2:11pm
      
      Re: Re: Re: Germany - not like the US
      If you are 'censored' by the likes of Facebook and YouTube, you can try to gather support by setting up your own site. Also, if you have enough support within the communities on those sites, they will raise enough noise to get decisions reversed.
      
      If you are censored by the Government, setting up your own site to keep on expressing your views becomes a crime.
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    - Anonymous Coward, 19 Apr 2018 @ 8:42am
      
      Re: Re: Re: Germany - not like the US
      
      there is frequently no viable avenue available to seek redress
      
      Please show me the law that says there has to be an avenue.
      
      Private companies, like facebook, get to be dictators on their own platforms because they aren't governments and can't throw you in jail or put you to death if you say something they don't like. Governments can. They also have their own 1st amendment rights.
      
      Also, please show me how facebook is a monopoly. Last I checked there were at least a dozen, or more, social media sites including but not limited to: myspace (yes it still exists), twitter, instagram, tumblr, snapchat, linkedin, google+, flickr, foursquare, pinterest, and many many more.
      [ link to this | view in chronology ]
- Anonymous Coward, 18 Apr 2018 @ 6:37am
  
  Re: Germany - not like the US
  The draconian censorship laws in Germany --and the Orwellian-themed government agencies that ruthlessly enforce them-- were established under American occupation (technically "Allied" but post-war Britain and France were essentially U.S. puppets). The modern German state is, by and large, an American creation, and one could reasonably argue that the post-war occupation never really ended, since the invading military forces (-Russia) that conquered Germany in 1945 are still there to this day. It's ironic that the country that brags the most about its own constitutional freedoms demands the opposite in the countries under its control.
  
  https://en.wikipedia.org/wiki/Federal_Office_for_the_Protection_of_the_Constitution
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Ninja (profile), 18 Apr 2018 @ 4:25am

It's not a hard exercise and all politicians should take it before suggesting or enacting some law regarding speech, freedom and other rights: if this law was active during the Nazi regime, would it be abused?

If the answer is yes then DON'T LET IT BECOME A FREAKING LAW.

Is it that hard?
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- Anonymous Coward, 18 Apr 2018 @ 4:52am
  
  Re:
  You are assuming that the politicians do not secretly admire such authoritarian regimes, and are probably mistaken.
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TheResidentSkeptic (profile), 18 Apr 2018 @ 4:41am

What we need here...
... is for a German citizen to write something about Erdogan that FB takes down, Germany sues to reinstate, and Turkey sues to keep down....
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That Anonymous Coward (profile), 18 Apr 2018 @ 4:48am

Facebook loses its appeal & is forced by the court to put the comment back up, then is promptly sued by the government for not taking it down fast enough.

This is the punishment for thinking you can have policies that are stronger than our laws!

Going after the posters wouldn't get nearly as much support as dinging the huge platforms & adding cash to the coffers.

People will say things that others will find offensive, but shifting the responsibility to the 3rd party is the ultimate in never having to take responsibility for your actions. Try to proactively protect yourself?? HELL NO! We'll force you to put the content back up to protect the citizens rights, even if later we think what he said was offensive & we'll charge you $50 each day it was up.

Legislating offensive is like trying to legislate morals, not everyone has the same personal definitions but instead of admitting its impossible we'll just pass the buck to the 4rd party & demand they create a perfect system because tech can do anything!
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- Ninja (profile), 18 Apr 2018 @ 5:26am
  
  Re:
  The thing is, people who recognize there are different ways of thinking and different opinions tend both to respect these differences and generally don't try to impose their own way of thinking/living onto others via laws or whatever the means. And sadly they are not the majority in politics nowadays.
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  - Anonymous Coward, 18 Apr 2018 @ 6:15am
    
    Re: Re:
    I miss the old days, when "just ignore it" was something you could do (and suggest) without incident. You'd close the page if someone posted something you found annoying or disturbing. Your day has a blemish on it, but you found something better to do online after.
    
    Since when did pointing out offense and flagging become some sort of team sport on social media? Once "offense" and "fake" became more prevalent topics online, so did the calls for censorship increase. No one discusses things, everyone accuses one another, tension and shit-flinging increases.
    
    Sounds like people behind the scenes are working to make this an issue people care more about, because the fever pitch of rhetoric from everyone about online censorship was not nearly as strong several years back.
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    - Ninja (profile), 18 Apr 2018 @ 6:50am
      
      Re: Re: Re:
      If you choose to ignore some portion of society that wants to impose their ideas on you then you can't just complain later when you get thoroughly screwed. I will ignore some white supremacist moron up to the point they start making their rounds into important democratic positions. And discourse is poisoned to the point you mentioned.
      
      Censorship has been creeping in steadily for the last few years after a pretty good time when the Internet made everything more open and transparent. Though the pitch now is not against censorship, for most people it's about censorship against thing I agree with, the rest be damned.
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    - That Anonymous Coward (profile), 18 Apr 2018 @ 8:30am
      
      Re: Re: Re:
      Because we want the world to be nice & safe... for the children! (or some shit).
      
      Each side abuses any system put into place to mitigate this to "win".
      
      Twitter has all sorts of touchy feely policies but rather than mention you can filter words you feel are hateful or block people bothering you they take the report(s) and then suspend someone... and this starts the back and forth because the "victim" almost always behaves in the same manner they call others out for... but they are on the "right" side so it's okay. Time is wasted investigating every report & every appeal (HA, this is not my experience) so Twitter can avoid ending up on some list claiming they don't do enough... because nothing they do is ever actually enough to please everyone.
      
      I didn't listen to news coverage of Westboro because I knew what they were going to say & I felt they were attention seeking idiots trying to get a rise out of people to get paid. Yet there were always people demanding they not be allowed their right to be loud idiots, ignoring that one day they could be pointed at as the loud idiots who needed to be silenced.
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Anonymous Coward, 18 Apr 2018 @ 5:47am

Simple solution
GOVERNMENTS STOP TRYING TO REGULATE THE INTERNET
AND GET THE FUCK OVER YOURSELVES
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Anonymous Coward, 18 Apr 2018 @ 5:51am

Well, damn. There's never been a more confusing time to run a social media network.
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Chris Chen, 18 Apr 2018 @ 6:00am

These stupid "offense" laws
are as pointless as Jesus building ramps for the disabled.
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Anonymous Coward, 18 Apr 2018 @ 6:01am

fragmented facts
Listen, I get where the author is coming from, I even have a similar opinion on the topic, but this article is severely lacking.

By leaving out some key aspects, this article paints the decision in a much harsher light, than it deserves. From the same zdnet article as the other quotes:

This is a temporary injunction of the sort that German courts grant after having heard only one side of the argument.

That literally means that the court has not decided yet either way. The intent of injunctions like this is likely to protect both sides of the argument. Assuming Gabor was right (which I think is highly unlikely), this prevents him from being wronged again and facebook from committing another illegal act (and getting slapped twice, instead of once).

Also the headline is technically wrong, because Facebook does not need to reinstate anything. From the same article again:

The preliminary injunction, which can be appealed, does not force Facebook to reinstate the comment, which remains offline at this point. However, it does stop Facebook from deleting the comment again, if Gabor B chooses to repost it.

I mean, come on, I'm up for complaining about how stupid german speech- and socialmedia-laws are, but if you do it, do it right and don't halfass it like this. It just makes it look like the author did not fully read the article he is referencing.
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Anonymous Coward, 18 Apr 2018 @ 7:07am

But Facebook has arbitrary "Right" to remove ANY content!
IF that's true, then you can't complain merely because a gov't is forcing the removal. Facebook is at worst just going along, as is its right. And gov'ts are just using a handy tool.

Since -- Techdirt claims -- that NO mere ("natural" person) user of a site has ANY right to have content up, or even an account, that Corporate Right is far superior, then on what basis do you complain at all?

Just because the removal here SEEMS to be at order of a gov't, it's NOT. Facebook, with its arbitrary power to control users, decided. You're confusing cause and effect. In fact, Facebook wrote the "law".
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- This comment has been flagged by the community. Click here to show it
  
  Anonymous Coward, 18 Apr 2018 @ 7:09am
  
  Re: But Facebook has arbitrary "Right" to remove ANY content!
  Let me try for slightly clearer: Techdirt rabidly supports Facebook having ARBITRARY power to remove content or users. -- WHY do you object when Facebook does so at order of a gov't? -- You are INSANE if make yourself subject to arbitrary corporate power (that you support!), but object when a vaguely reasonable gov't policy / law does the same.
  
  BOTH BAD, YOU LOSE. But if consistent you would at least not support the Corporatist Right to censor you that Techdirt keeps asserting at every opportunity.
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  - Anonymous Coward, 18 Apr 2018 @ 7:36am
    
    Re: Re: But Facebook has arbitrary "Right" to remove ANY content!
    I find it fascinating how concerned you are at not being allowed to post on facbook, but you are not at all concerned about not being allowed to publish articles in the New York Times or host a show on CNN.
    
    Surely those platforms, limited to dozens of daily active users, are much more guilty of "censoring natural persons" than facebook, with their 1.4 billion daily active users.
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  - Anonymous Coward, 18 Apr 2018 @ 9:20am
    
    Re: Re:
    Expected you to shit your pants. Was not disappointed.
    
    You subject yourself to the arbitrary corporate power of the MPAA. All the time. You're not in any position to bitch.
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  - Anonymous Coward, 19 Apr 2018 @ 8:48am
    
    Re: Re: But Facebook has arbitrary "Right" to remove ANY content!
    Logic, get some. Also, read the article, this isn't about a removal, it's about forcing them to put back up posts they took down for violating their TOS.
    
    What's worse, me deciding I don't like you and kicking you out of my house so I don't have to listen to your annoying prattle, or the government forcing me to kick you out? Or in this case, the government forcing me to LET YOU STAY in my house when I don't want you there?
    
    Clear enough for you now?
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Anonymous Cowherd, 18 Apr 2018 @ 7:26am

Facebook should just block all traffic from Germany with reference to the stupid law, see who's side the people come down on.
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- John85851 (profile), 18 Apr 2018 @ 7:45am
  
  Re:
  I was just about to say the same thing, but then I realized: if Facebook really blocked all German traffic, would the people blame Facebook or would they blame the government? Something tells me that people would yell at Facebook for not cooperating with the government rather than complain about a bad law.
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  - Oblate (profile), 18 Apr 2018 @ 10:14am
    
    Re: Re:
    
    would the people blame Facebook or would they blame the government?
    
    They'll blame whoever the Russians tell them to.
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stine, 18 Apr 2018 @ 11:24am

compare and contrast with 'napalm girl'
YOu can't have your cake and simultaneously eat it.
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Anonymous Coward, 19 Apr 2018 @ 4:10am

Repeat a lie a thousand times...
<blockquote>
the law holds Facebook responsible for users' posts -- to the tune of €50m a violation.
</blockquote>
It still doesn't, no matter how often you repeat it
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- Anonymous Coward, 19 Apr 2018 @ 8:49am
  
  Re: Repeat a lie a thousand times...
  Not in the US, but it does in the EU where they passed just such a law.
  
  Facts. Check them.
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  - Anonymous Coward, 20 Apr 2018 @ 4:23am
    
    Re: Re: Repeat a lie a thousand times...
    Facts:
    1: "in the EU" no law was passed, the law in question is an exclusively German affair
    2: The €50m fine would for companies who refuse to implement the law at all. There is no €50m a violation fine, no matter how hard Tim wants it to exist.
    
    Here are your facts. Check them:
    https://www.gesetze-im-internet.de/netzdg/BJNR335210017.html
    https://www.bmjv.de/SharedDocs/Down loads/DE/Themen/Fokusthemen/NetzDG_Bu%C3%9Fgeldleitlinien.pdf?__blob=publicationFile&v=3
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    - Anonymous Coward, 20 Apr 2018 @ 6:42am
      
      Re: Re: Re: Repeat a lie a thousand times...
      Germany is in the EU, granted it doesn't apply to the entire EU but the statement is still technically correct.
      
      Also:
      
      Starting this year, social media companies face fines of up to €50 million ($61.2 million) in Germany if they fail to remove hate content in a timely manner.
      
      My facts: http://www.bbc.com/news/technology-40444354 https://www.hrw.org/news/2018/02/14/germany-flawe d-social-media-law http://www.dw.com/en/eu-social-media-companies-accelerate-hate-speech-removals-in -self-regulation-push/a-42222597 https://www.techdirt.com/articles/20180102/14194238913/german-hate- speech-law-goes-into-effect-turning-social-media-platforms-into-govt-revenue-generators.shtml
      
      What about facts again?
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      - Anonymous Coward, 20 Apr 2018 @ 7:25am
        
        Re: Re: Re: Re: Repeat a lie a thousand times...
        Hmmm, on the one hand we have the actual text of the law, on the other hand media reports...which of these two sources might be the authoritative one?
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        Anonymous Coward, 20 Apr 2018 @ 9:15am
        
        Re: Re: Re: Re: Re: Repeat a lie a thousand times...
        Well apparently you must speak fluent German then since both those sites are in German only. You could claim they say Luke Skywalker is king of the world and I wouldn't be able to say you're wrong just by reading them myself. So instead, I'll rely on reports from EVERY MAJOR RESPECTED NEWS OUTLET that says you're wrong.
        
        But, since that likely still won't satisfy you, let's try Google translate on it. Oh hey look, Section 3, paragraph 2, item 2 states the provider must: "removes or blocks access to any obviously unlawful content within 24 hours of receiving the complaint".
        
        So, yes, what about those facts again?!?!?!?
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