German Justice Minister Heiko Maas has proposed legislation that, if passed in Parliament, will be a landmark law in Europe.

When Anas Modamani, a Syrian refugee, took a selfie with German Chancellor Angela Merkel in 2015, little did he imagine that thousands would post the photo online linking him falsely to terrorism. Dismayed, Mr. Modamani sought an injunction against Facebook, demanding that it remove all defamatory content on him. He lost the case, but the trial led to heated discussions on tackling online hate speech in Germany, a country that has some of the toughest laws on the subject.

German Justice Minister Heiko Maas has proposed legislation that, if passed in Parliament, will be a landmark law in Europe. Approved by the Merkel Cabinet in April, the Network Enforcement Law (NEL) places the onus on social media companies like Facebook to tackle the problem by deleting “obviously illegal content” within 24 hours. They have a week to examine more ambiguous cases. It threatens to slap them with fines up to €50 million if they do not comply. It forces companies to do something that they are widely criticised for not doing: take responsibility for the content they publish. But not everyone is happy.

“There are two main problems,” says Dr. Stefan Heumann of Stiftung Neue Verantwortung, a think tank which is measuring fake news in Germany. “The companies, not the courts, decide what constitutes illegal content. And the fines incentivise them to delete content. If they are not sure whether a post is legal or not, they might just delete it to err on the side of caution.”

In 2015, Internet giants told an unhappy Germany that they would delete criminal forms of hate speech on their platforms within a day. But early this year, a study by Germany’s Justice Ministry found that they were not keeping their promise. It was then decided that legislation was the solution.

Public task

In a recent statement, Facebook showed its displeasure at the NEL. “The prevention and combating of hate speech and false news is a public task which the state cannot escape,” it said, adding “several legal experts” had noted that the proposal violates the German Constitution and is not compliant with European Union law. Complicating matters further is what constitutes hate speech. “Do satire, poor journalism, jokes, etc. constitute hate speech?” asks Christian Stoecker, professor of digital communication at the Hamburg University of Applied Sciences. “Every day, courts deal with cases where someone thinks some remark is hateful or defamatory and someone else does not. Imagine the number of cases that would pile up if this law were passed.”

Prof. Stoecker explains his point with a 2016 case that caused a strain in ties between Germany and Turkey. German satirist Jan Boehmermann presented on his show an experimental “poem” that attempted to find the line between satire, which is legal, and “abusive criticism” of a foreign state leader, which is a punishable offence in Germany. The poem was rich with profanities against the Turkish President. A furious Turkish government demanded that Mr. Boehmermann be criminally prosecuted. Ms. Merkel surprisingly granted the request under a little-known law.

Many also worry that Justice Minister Maas’ proposal could give way to censorship. In a joint declaration condemning the adoption of the NEL, several academics, legal scholars, and organisations said intensifying criminal prosecution against those inciting hate speech and strengthening counter speech was the way forward. Even the coalition partners of Mr. Maas’ Social Democratic Party have said the draft law requires modifications. But Mr. Maas, for now, seems determined to go ahead.

Radhika Santhanam writes for The Hindu and is currently in Munich