Delete Hate Speech or Pay Up, Germany Tells Social Media Companies
This is a bad law, but this is also frustratingly bad reporting. I understand that American media have to often translate foreign legal concepts into something closer to American ones, so they talk about &quot;hate crimes&quot; and &quot;hate speech&quot; (offenses that as such don&#x27;t accurately reflect legal concepts as they exist in Germany), but in this case it&#x27;s not even an accurate representation of the law.<p>The list of offenses that the law talks about includes a whole list of things that aren&#x27;t remotely hate speech: they include things such as the creation of a criminal or terrorist organization or illegal distribution of pornography (pornography is not per se illegal, but you cannot, for example, sell it to minors).<p>The goal of the law is basically to enforce offenses that are commonly committed online by deputizing social media companies. And this is where the actual problem lies; the law does not regulate anything that isn&#x27;t already an offense, after all.<p>1. Many of these social media companies do not even have a legal presence in Germany and it is questionable whether Germany even has jurisdiction under current EU law.<p>2. Even if Germany has jurisdiction, having social media companies adjudicate the legality of online content (even where there is a legitimate interest and we are not dealing with offenses that affect freedom of speech) is a bad idea in too many ways to count. The social media company is incentivized to err on the side of banning content; they generally do not have the resources and&#x2F;or personnel with adequate legal training to properly adjudicate the issue in many cases; and if they get things wrong, there is often no practical way to appeal their misjudgment.<p>3. The law may (due to its crude mechanisms) have a chilling effect far beyond what any that current laws create, even though on paper we&#x27;re talking about the same offenses. That&#x27;s because the legal system generally subjects potential prosecution for many of these offenses to a high level of scrutiny in order to protect freedom of expression. It is unlikely that Facebook and Twitter are going to do the same.<p>4. As a result, the law is probably headed for a collision course with the Federal Constitutional Court at the earliest opportunity.