by In an initial FAFO test for Elon Musk, Germany could be ordered to fine Twitter for repeatedly failing to comply with a social media hate speech law, aka NetzDG, which requires the rapid removal of illegal content such as hate speech.
The Federal Office of Justice (BfJ) announced the decision in a press release today – saying it had initiated proceedings under the National Network Enforcement Act (aka NetzDG) after having established that there were “sufficient indications of failures” in the platform’s complaint handling processes.
Under the NetzDG, social media platforms must respond to user reports of illegal content, verify what was reported, and remove the content if it is confirmed to be illegal, within seven days – or 24 hours. for the most manifestly illegal content. What is illegal is governed by the German criminal code, which includes hate speech, abuse and threats, and anti-Semitism.
“A lot of content has been reported to the BfJ that was posted on Twitter, which the authority considers illegal and, despite user complaints, was not removed or blocked by the provider within the legal deadlines. legal proceedings are based on this,” the BfJ said in a statement (which we have translated from German with machine translation).
“In the event of individual breaches by social media providers of the monitoring and removal obligations of the NetzDG, it cannot generally be assumed that there is no effective procedure for dealing with complaints about illegal content. However, a systemic failure in handling complaints is subject to fines, which occurs when violations of relevant NetzDG specifications repeatedly occur in a timely and materially relevant manner.
The Office said the content it is acting against Twitter on is “closely related in time and substance” – blaming a “systemic failure in handling provider complaints”. “They were posted on Twitter over a period of about four months and reported to Twitter’s provider as illegal by users,” he added. “All content contains similar, unjustified and defamatory statements of opinion, all directed against the same person. According to the BfJ, they constitute a crime.
On paper, Germany’s NetzDG law provides for fines of up to €50 million for breaches of the scheme.
However, so far the government hasn’t sought to enforce the law for content moderation breaches – and, let’s face it, no social media company can claim a perfect record on this front – so it’s interesting to see Musk’s Twitter needle the Justice Bureau finally into action. (NetzDG came into effect in October 2017, when Musk was more busy hyping Hyperloop and The Boring Company than beating Twitter to death.)
Messaging platform Telegram was hit last year with NetzDG fines totaling 5.125 million euros. But that was for failing to provide users with tools to report illegal content and for not creating a legal entity in Germany to receive official communications from regulators – rather than for violations of the takedown rules themselves. , which Twitter seems to be up against here.
We emailed Twitter’s press office for a response to the BfJ who initiated proceedings regarding the system’s content moderation failures and he responded with an automated response containing the poop emoji – something which Twitter’s press messaging account has been doing since late last month. (Musk previously liquidated Twitter’s communications department, clearing the way for his remaining “hardcore” engineers to replace smart communications staff with a dumb algorithm.)
Ever since Musk took a sink into Twitter’s headquarters in late October – to signal the start of his reign/emptying the platform into the sewers – he’s been on the verge of downsizing and dismantling resources that were previously dedicated to content moderation. Yet despite running a wrecking ball through the platform’s ability to respond to user reports of hateful content, it has claimed to reform and improve its approach to moderation – making a big show of developing an existing crowd-based fact-checking feature called Community Notes.
He suggested this is his preferred route to providing decentralized and fair speech moderation, via a system of additional ratings that can be added to “bad speech” rather than removed from it (combined with certain penalties like deleting tweets algorithmic recommendation).
The thing is, Musk’s argument is not only dishonest – outsourcing content moderation while slashing internal resources isn’t an improvement, but you want to spin it – he’s also blind to risk legal framework that its decisions have put in place for the company in countries like Germany where there is no participatory debate on illegal content since the law requires the rapid removal of illegal tweets. Therefore, the NetzDG offers an early test of Musk’s approach/complaints/appetite for fines, as we reported last year.
(NB: The European Union’s Digital Services Act also imposes legal requirements on how digital services must approach content governance – and this regulation comes into force across the EU for all digital services from early 2024; although a subset of larger platforms, called VLOPs are expected to be compliant sooner, likely starting this fall, and it is possible that Twitter will hit the VLOP threshold. Fines under the new EU regime, meanwhile, can be as high as 6% of annual worldwide turnover.)
Back in Germany: Twitter appears to have a chance of avoiding what could be a multimillion-dollar NetzDG fine if it engages with the feds over concerns about illegal content – as the BfJ says it gives the company the opportunity to comment on the alleged systemic failure in handling complaints.
If Twitter fails to do so, or – say – it sends a response that has as much substance as a poop emoji, the BfJ will take the next step in the process finding that its allegation of illegal behavior stands. justified – and will apply to the district court of Bonn for the initiation of preliminary ruling proceedings.
NetzDG requires a judge to rule on the illegality of the content complained of, before a fine is imposed for a failed takedown, so it would be up to the Bonn District Court to do so. If the court confirms the BfJ’s view on the illegality of the content, the Office would then be empowered to impose a fine on Twitter. So there’s still time to stock up on popcorn for this one.
If that weren’t enough to make Germany FAFO, Musk’s Twitter also faces a separate illegal content challenge for illegal content: In January, a Holocaust denial lawsuit for hate speech was filed by HateAid and the European Union of Jewish Students seeking to establish whether companies whose terms and conditions prohibit anti-Semitism have a contractual obligation to abide by their terms.
The litigants are taking a different approach (vs. NetzDG) — and, if their lawsuit prevails, it could set a precedent that applies more broadly than Twitter. So Musk’s tenure at the top of the bird may have broader significance for free speech than he suspects.
