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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

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 "hate crimes" and "hate speech" (offenses that as such don't accurately reflect legal concepts as they exist in Germany), but in this case it's not even an accurate representation of the law. The list of offenses that the law talks about includes a whole list of things that aren'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). 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't already an offense, after all. 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. 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/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. 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're talking about the same offenses. That'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. 4. As a result, the law is probably headed for a collision course with the Federal Constitutional Court at the earliest opportunity.

kuschku 9y ago
As the law only applies to stuff that is already illegal, and only requires companies to remove it on request, if it is obviously violating the law, ... Well, we already know what this law looks like. It's just the DMCA, expanded to other types of content. This is bad, but it's not nearly the end-of-the-world that the hypocritical US-Americans on HN have been claiming it is.
- rbehrends 9y ago
  > As the law only applies to stuff that is already illegal, and only requires companies to remove it on request, if it is obviously violating the law, ... The problem is that these things often aren't "obvious". For example, one offense that is listed in the law is §185 of the penal code, which criminalizes insults (I'm not kidding). Because making every insult a criminal offense would make real freedom of speech impossible in practice, actual application of that law is subject to various and sundry constraints as the result of case law of the Constitutional Court. As a result, it's actually virtually impossible to commit such an offense in the political arena (in practice, the law has therefore been reduced to an institutionalized form of contempt of cop for the most part, and occasionally sees use as a modern form of dueling for the few bored and rich enough to pursue a private lawsuit: lawyers at ten paces, so to speak). But to understand that, you do have to be sufficiently familiar with the case law. That's not much of a problem when an actual prosecutor examines the facts: the case against Boehmermann, for example, was pretty quickly dismissed, because the prosecutor knew it was going nowhere fast. But now let's have Facebook's staff – most of them without legal training – examine the same facts and they may very well get it all wrong. Or, worse: decide to simply not bother with getting it right and just err on the side of caution. The law does not penalize inadvertent censorship, after all.
  - voidz 9y ago
    Thank you for the useful insights. I worry that the chilling effect, and people self-silencing/self-limiting, are already happening to an extreme degree. One might even regard this law as an expression of that. So I worry that this law is fruit of what is happening, not the other way around. I wonder whether there isn't already too much self-censorship going on, especially with people who just have their own nuanced (harmless) ideas. HackerNews to me sits is remarkably well inside the eye of numerous storms. Really happy about that. Outside from here though people might just risk so much when all they want is to try and express those (apparently "arguably") harmless thoughts. The risk of falling pray to all kinds of social dangers can be very scary. Not worth it at all, in fact. So devolves the discourse which obviously gives rise to agression and spite as the most popular clothing of free speech. To an extent we're doing this to ourselves more than the governments are to blame. I'm not arguing that this law is any kind of solution to our problems. Au contraire - what I'm just saying is that individuals in positions of authority get more than their fair share of spite and hate, so, this is what happens. Yet however also, not long ago the public discourses that take place at present were unfathomable! The whole world being able to talk together on to such an immense scale via thing called the Internet - which, somewhat hilariously ironically, apparently should be called just internet without a 'the' and capital I from now on, per decree put forth by some editors. But never mind that. Point is, when we do a thing like this (give ourselves 'an internet' -o, hey!), pain is just bound to start flowing and we should be careful with that. Our social evolution is what feels to be at stake here, with the way things are headed.
yladiz 9y ago
So if a company doesn't have a direct presence in a country but has many users from that country (for example, the German law this article is talking about has a threshold of 2 million German users), it doesn't have to follow the laws of that country? For example, if a newspaper company was about to publish something illegal (like something pro-Nazi), who polices that? My understanding is that its the newspaper company because they know the laws around print media. So, why is social media any different? Why are they not in charge of policing their content? I believe that in some ways, their policing efforts aren't the same as a newspaper because they're not the ones directly creating the content, but they still have a responsibility to police it in some way because it is on their platform.

kuschku 9y ago

As the law only applies to stuff that is already illegal, and only requires companies to remove it on request, if it is obviously violating the law, ... Well, we already know what this law looks like. It's just the DMCA, expanded to other types of content. This is bad, but it's not nearly the end-of-the-world that the hypocritical US-Americans on HN have been claiming it is.

rbehrends 9y ago
> As the law only applies to stuff that is already illegal, and only requires companies to remove it on request, if it is obviously violating the law, ... The problem is that these things often aren't "obvious". For example, one offense that is listed in the law is §185 of the penal code, which criminalizes insults (I'm not kidding). Because making every insult a criminal offense would make real freedom of speech impossible in practice, actual application of that law is subject to various and sundry constraints as the result of case law of the Constitutional Court. As a result, it's actually virtually impossible to commit such an offense in the political arena (in practice, the law has therefore been reduced to an institutionalized form of contempt of cop for the most part, and occasionally sees use as a modern form of dueling for the few bored and rich enough to pursue a private lawsuit: lawyers at ten paces, so to speak). But to understand that, you do have to be sufficiently familiar with the case law. That's not much of a problem when an actual prosecutor examines the facts: the case against Boehmermann, for example, was pretty quickly dismissed, because the prosecutor knew it was going nowhere fast. But now let's have Facebook's staff – most of them without legal training – examine the same facts and they may very well get it all wrong. Or, worse: decide to simply not bother with getting it right and just err on the side of caution. The law does not penalize inadvertent censorship, after all.
- voidz 9y ago
  Thank you for the useful insights. I worry that the chilling effect, and people self-silencing/self-limiting, are already happening to an extreme degree. One might even regard this law as an expression of that. So I worry that this law is fruit of what is happening, not the other way around. I wonder whether there isn't already too much self-censorship going on, especially with people who just have their own nuanced (harmless) ideas. HackerNews to me sits is remarkably well inside the eye of numerous storms. Really happy about that. Outside from here though people might just risk so much when all they want is to try and express those (apparently "arguably") harmless thoughts. The risk of falling pray to all kinds of social dangers can be very scary. Not worth it at all, in fact. So devolves the discourse which obviously gives rise to agression and spite as the most popular clothing of free speech. To an extent we're doing this to ourselves more than the governments are to blame. I'm not arguing that this law is any kind of solution to our problems. Au contraire - what I'm just saying is that individuals in positions of authority get more than their fair share of spite and hate, so, this is what happens. Yet however also, not long ago the public discourses that take place at present were unfathomable! The whole world being able to talk together on to such an immense scale via thing called the Internet - which, somewhat hilariously ironically, apparently should be called just internet without a 'the' and capital I from now on, per decree put forth by some editors. But never mind that. Point is, when we do a thing like this (give ourselves 'an internet' -o, hey!), pain is just bound to start flowing and we should be careful with that. Our social evolution is what feels to be at stake here, with the way things are headed.

yladiz 9y ago

So if a company doesn't have a direct presence in a country but has many users from that country (for example, the German law this article is talking about has a threshold of 2 million German users), it doesn't have to follow the laws of that country? For example, if a newspaper company was about to publish something illegal (like something pro-Nazi), who polices that? My understanding is that its the newspaper company because they know the laws around print media. So, why is social media any different? Why are they not in charge of policing their content? I believe that in some ways, their policing efforts aren't the same as a newspaper because they're not the ones directly creating the content, but they still have a responsibility to police it in some way because it is on their platform.