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Social media giants are joining forces to take on the German government over its beefed-up online hate speech law.
Facebook (Meta), YouTube, Twitter and TikTok have sued in response to new rules that aim to send illegal pieces of content — including photos of swastikas or posts inciting violence — and user data to a central law enforcement agency, the Federal Criminal Police Office (BKA), starting this week.
Under the law, tech companies also have to wait a month before informing a user about a transfer of their information to the police, unless law enforcement forbids the platform from doing so.
Faced with a growing pile of lawsuits from the largest social media companies, Germany has told Google and Meta to hold off on following these new rules. Twitter and TikTok, however, will have to start submitting their data under the law, according to a spokeswoman for the Federal Ministry of Justice.
The setback comes as German politicians grapple with an uptick in online hatred and misinformation. Berlin has in recent weeks been vocal about its struggle to curb toxic content on fringe social media platforms including Telegram, with authorities going so far as to threaten to shut down the encrypted chat service and calling on Apple and Google to remove it from their app stores .
The new rules are an update to Germany’s existing content moderation law, known as the NetzDG, and aim to speed up the identification and prosecution of hate crimes following far-right attacks in a synagogue in Halle and in bars in Hanau. The rulebook, already considered to be one of the most far-reaching in the West, mandates that social media companies remove the most egregious illegal content within 24 hours of being reported for violations, or face penalties up to €50 million.
But tech companies say the changes put people’s privacy and fundamental rights at risk.
Berlin’s legal standoff with Big Tech also sends a warning to European lawmakers and diplomats who are currently negotiating a pan-European content moderation law known as the Digital Services Act that could enter into force as soon as 2023.
A privacy conundrum
The dispute represents a headache for Berlin, which must balance great public concern for privacy against a desire to rein in illegal hate speech.
“It adds to all the delays that came with the NetzDG reform,” said Julian Jaursch, a digital policy expert at the Berlin-based think tank Stiftung Neue responsibility.
The then government had to go back to the drawing board several times because of constitutional concerns about its proposed changes.
Jaursch said the situation also reflected a much broader struggle for policymakers to balance measures to crack down on online hatred while respecting people’s privacy.
Shortly after the new rules were adopted in mid-2021, YouTube and Facebook launched legal attacks. TikTok and Twitter followed suit, filing separate lawsuits in late January with the Administrative Court of Cologne. The social media companies argued that the changes to NetzDG did not comply with European and German privacy laws.
“We believe that some of the proposed amendments to the NetzDG law will have a negative impact on our community’s right to privacy,” said a TikTok spokesperson.
A Google spokesperson said that the “massive forwarding of personal user data to criminal prosecution is only possible after a detailed examination by a court and judicial confirmation.”
Twitter said the rule would push private companies to act as “prosecutors by reporting users to law enforcement even in the absence of illegal behavior” while a Meta spokesperson criticized the threat to fundamental rights.
The companies haven’t yet connected to the BKA’s digital interface, according to The mirror. The German Federal Justice Ministry said Twitter had asked for legal protection to temporarily not apply the rule and that Google and Meta were the only current exemptions from the rules.
Meanwhile, Matthias Kettemann, a lead researcher on platform law at the Leibniz Institute, said the odds were likely in the tech giants’ favor, since the rules seemed disproportionate, referring to information from the BKA, which said it expected only about 60 percent of the reported content to result in criminal proceedings.
But he also added that platforms were conveniently using the privacy argument against the German government.
“It’s problematic if people’s data are stored and transferred when they don’t constitute a crime, but the platforms that are suing have many other privacy issues,” he added.
Legal experts expect the DSA’s EU-wide regulations could come before the lawsuits reach their end, replacing Germany’s own content law. They warned that the German case could send a strong signal to negotiators about the potential future legal battles Big Tech might take on to erode the DSA.
“Negotiators will pretty much notice that there’s a big, big data protection elephant waiting in the room and if they are too — let’s say — data insensitive, this would be a problem later on,” said Kettemann.
Lawmakers in Brussels are working on a similar but narrower guideline, requiring not just social media platforms but all hosting services to contact and provide “all relevant information” to law enforcement or judicial authorities over potentially serious criminal offenses that could lead to life-threatening situations .
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