Colin Cortbus, who has written here twice before about free speech issues in Germany, returns to discuss recent German censorship measures.

Angela Merkel‘s German government has decided to crush digital freedom of speech to silence opposing voices ahead of an election. The measures taken by the German government have chilling consequences for digital freedom worldwide – and Vladimir Putin‘s regime has already began to copy them.

After over 11 years in power, Germany‘s tired Chancellor Angela Merkel and her coalition partners appear to have panicked that they might underperform in the crucial, upcoming federal election in September.

It is not hard to see why. The circulations of mainstream newspapers, which traditionally mollycuddle the Germany‘s political establishment, have been uniformly falling. The only nationwide papers to make gains in sales at all in the last year were Der Freitag, an outspoken, left-liberal newspaper focused on opinion pieces, and Junge Freiheit, a national-conservative outlet strongly critical of the government. The Junge Freiheit‘s adversarial, if at times deeply disagreeable, reporting has long been a thorn in the side of Germany‘s political elite. Unspurprisingly, the newspaper was unconstitutionally targetted by the state‘s domestic intelligence agencies until 2007. To this day, the taxpayer-funded Federal Agency for Political Education warns the voting public that the paper represents a “key outlet of a radical nationalist opposition, which seeks a fundamental change in the social, political and cultural conditions in Germany“. That is an entirely fair, opinionated criticism of the paper‘s percieved mission if you are a private citizen. But it can hardly be deemed to be an ethically acceptable intervention into the debate when it comes from a publically-funded government agency with a legal duty to maintain “balance and distance pursuant to the rule of law“.

But even such Orwellian methods can‘t put a stop to the fact that increasingly, ordinary people are expressing scepticism towards the Government‘s official narratives – preferably via social media, where they can network more easily with like-minded people, often under the saving cover of anonymity. This makes old-style, brute force legal thuggery quite redundant. The government‘s inquisitorial hirelings might potentially be able to intimidate one or two frightened citizens into silence by threating to take vague, and constitutionally bogus measures; For example, police reportedly opened a “criminal investigation“ for “defamation“ against a speaker at an opposition party campaign rally in December who criticised Angela Merkel as „criminal and insane“. But against an ever-growing, often anonymous, sometimes out-of-control crowd of outspoken netizens, these crude, resource-intensive, individualised tactics are but a bureaucratic drop on the hot stone of popular discontent.

Absent of an easy route to get at the netizens themselves, what the government really needed was a quick way to force social media firms to make their platforms inhospitable environments for critical, dissident expression; But taking action against social media networks did not turn out to be all that easy.

In 2016, prosecutors had to humiliatingly drop a pointless, four month-long investigation into a German Facebook executive. The manager had been bizarrely accused in a citizen‘s criminal complaint of abetting racist incitement by puportedly not deleting hateful comments quickly enough – even though his personal role within the social media company did not actually have anything to do with content control.

But coercively targetting social media companies remained an attractive option for the German government. Outsourcing censorship to privately-owned social media firms presents a neat way to circumvene the high bar of constitutional scrutiny that would apply to the state if it tried to enact such censorship directly.

In this context, a tiny number of largely hard-line pro-Government legislators convened in an almost empty parliamentary chamber, just before the end of the last key pre-election Bundestag sitting, late in June. Without all too much ado, they quickly rubberstamped an ominous sounding law; the Netzwerkdurchstetztungsgesetz, or Network Enforcement Act in English.

On paper, the Network Enforcement Act is supposed to combat the purported dangers of “fake news“ and “hate crime“ on social media, in light of events related to the US presidential election.

But this is a poor, figleaf excuse for one of most Machiavellian anti-free speech laws in the Western world.

Surprisingly, the Network Enforcement Act itself does not create any new speech offences designed to better deal with the incitement of violent racial hatred or the glorification of terrorism. In fact it does not even confine itself improving the technical means to clamp down on such specific speech.

Far rather, it weaponises Germany‘s already wildly overbroad and repressive anti-insult and criminal libel laws, which have been previously highlighted on this website. Under these pre-existing, but often ineffectively or inconsistently enforced laws, truth is no absolute defence and even criticism of long-deceased historical figures can be criminalised.

Pursuant to the Network Enforcement Act, social media companies now face substantial fines of up to 50 million Euros if they fail to delete content that is “obviously illegal“ under these laws within 24 hours of recieving a complaint. The same fines apply if not-so-obviously illegal content is not deleted within one week. Moreover, social media companies are also obliged to respond to requests (possibly for data about allegedly criminal users) from state prosecutors within 48 hours – a fraction of the time it would take a good lawyer to write a letter disputing or refusing any mala fide requests.

German courts take months or years to decide whether or not certain speech counts as criminal libel or insult – and even then they often cannot agree. Social media companies cannot possibly accomplish the same in 7 days, much less 24 hours – and the Network Enforcement Law does not even attempt to define what is meant by an „obviously illegal“ posting that has to be deleted in 24 hours. As a result, social media companies will simply feel forced delete all and any disputed content, amid a flurry of malicious complaints from censorious politicians and businessmen who are keen to stifle criticism and inconvenient election campaigning. No wonder, given that experts estimate the fines and costs in case of non-compliance might set social media providers back by up to 530 million euros in total, annually.



Merkel‘s government knows all this full well. Legal experts have voiced strong criticisms of the Network Enforcement Act at parliamentary hearings. The government has been advised by its very own parliamentary research service that the law is in breach of European Union rules. Experts acting for the Organisation for Security and Cooperation in Europe, of which Germany is a member, have voiced concern that the law fails to strike an adequate balance when it comes to freedom of expression. David Kaye, the UN special rapporteur for free expression, has pointed out that the „ obligation placed upon private companies to regulate and take down content raises concern with respect to freedom of expression… A prohibition on the dissemination of information based on vague and ambiguous criteria, such as ‘insult‘ or ‘defamation‘ is incompatible with article 19 of the International Convenant on Civil and Political Rights“. Moreover, the UN special rapporteur noted that he was “also concerned at the provisions that mandate the storage and documentation of data concerning violative content and user information related to such content, especially since the judiciary can order that data be revealed. This could undermine the right [of] individuals enjoy to anonymous expression ..“.

When a government is desperate to win an easy election and vindictively crush popular dissent, such fine matters of international human rights law are scarely of any relevance. Merkel and her ministers have not even taken window-dressing steps to ensure the law would eventually withstand legal challenges once it comes into force– or for that matter that compliance would be affordable for social media companies. Even the government‘s official justification for the law – to prevent ‘fake news‘ or ‘hate speech‘ from impacting election campaigns, as purportedly occured in the US, is a dishonest non-sequitor; Although the government has had a rock solid parliamentary majority for years, it only passed this law at a point in time so close to the election that technically, the Network Enforcement Act is extremely unlikely to come into force until a few weeks after the election.

What the law says, and what happens when or if it ever comes into force technically is actually quite arcanely insignificant. The law already achieves its objectives by merely existing as a future prospect; The potential of the government even contemplating enacting the costly, repressive, vastly overbroad act is entirely sufficent for bringing in the sweeping and lawless regime of state-mandated, privately enforced mass digital censorship that the government appears to crave so strongly.

In an effort to avoid endless legal battles, vast administrative efforts and hundreds of millions of euros in administrative costs, social media firms will likely be cowed into deleting controversial, critical content preemptively; Right now, prior to the election or the law coming into force. After all, any profit-oriented private business would want to do everything it could to try to avoid the vastly expensive law entirely. By acting now to show the government that they can do the censorship job themselves, making clear that they are capable of acting informally and directly, that there is no actual need for this meddlesome legal regulation. After all, when the coalition government brought in the law, it explicitly stated that one reason for the purported neccessity of the law was that “too small amounts of illegal content are being deleted“ by social media providers, and that user complaints against illegal content were not being processed by social media providers “immediately and sufficiently“.

Thus, the Network Enforcement Act unleashes an immediate, informal, and ultimately lawless tsunami of content deletion; Content deletion that will be conducted kleptocratically by private businesses out of their sheer need for economic survival, far away from the prying eyes of the public, without even a facade of due process or any means of legal recourse. And as an added bonus for the government, netizens who rely on anonymity right now to freely express their thoughts are also likely to be pressured into silence. However vague, the possibility that someday in the future their user account details could be given to prosecutors in some ominous, ill-considered 48 hour express procedure will now weigh heavy on their fingers as they type.

The result will be a stolen election defined by the voices of a politically well-connected media elite, with debate taking place firmly within the government-dictated boundaries of acceptable expression.

Heated, at times hyberbolic, and yes, occasionally emotionally hurtful grassroots exchanges in the marketplace of ideas are what defines a functioning, open democracy. In Merkel‘s new Germany, free, open debate will only be discernible by its silent absence.

Naturally, Merkel‘s government desperately wants to hide this sore reality from a global public.

Very few contempory authoritarian leaders enjoy the enacting their repressive laws in the light of day. When a global swimming championship came to the Hungarian capital Budapest, wannabe-strongman Victor Orban rushed to take down neo-Soviet style propaganda posters that had previously polluted almost every street with their ugly presence. Evidently, he did not want foreign sports fans to think too much about how his regime uses tax-payer funds to promote its own party political propaganda, all while enacting cheap, nefarious pseudo-laws designed to prevent opposition movements from displaying privately funded anti-corruption messages in public. Turkey‘s dictator Erdogan also loves to distract from his systematic destruction of free speech, Kurdish human rights and religious liberty by ranting about fantastical conspiracies involving Gulenists and supposed Kurdish PKK sympathisers (who are secretly actually linked to “atheist Armenians“, according to one of Erdogan‘s right-hand men). It could just as well be Elvis Presley plotting to silence the prayer call of Ankara minarets with loud country music broadcast from his hideout on Mars via a supersonic hyperloop; Any lie will do as long as it takes the heat away from the crimes Erdogan himself is actually committing.

Germany‘s power-obsessed leadership doesn‘t just want to maintain a bog standard clean reputation. It is actively trying to establish itself on that very special moral throne Trump recently vacated because of his venality and imprudence; That of the leader of the free world. And that requires some very out of the box political reputation management.

So, just hours before the German parliament passed the Network Enforcement Act on the 30th of June, its legislators truimphantly passed a bill introducing equal marriage rights for gay people. Merkel had decided to no longer require lawmakers belonging to her centrist-conservative CDU party to vote against the measures, allowing lawmakers to freely choose how to vote as a matter of personal conscience.

Conveniently, this unexpected decision by Merkel dominated the global and domestic news cycle for days. It made the chancellor a darling of global community. Critical coverage of the Network Enforcement Act was relegated to a minor item in the packed news agenda.

But Merkel‘s decision to hold the marriage equality vote at such a time was not just a cynical attempt to abuse gay people‘s rights as cheap political cover to distract from the introduction of repressive censorship laws. It also represents more widely the hypocritical, stage-managed 'democracy' the government presides over.

Angela Merkel had over 10 years in government to find the time and space to realise that gay equal rights were an issue of conscience, not suited to partisan voting instructions.

Choosing to hold a free vote just before the election doesn‘t appear to represent a genuine change of mind on the issue.

Far-rather, it seems like a deeply utilitarian device to allow Merkel to avoid a humiliating forced concession to her political rivals a few months later; All of Merkel‘s three potential coalition partner parties had included red lines in their manifestos, pledging that they would never enter a coalition with the Merkel‘s centre-right CDU party, if she continued to refuse to introduce gay marriage. Germany‘s proportional electoral system essentially makes coalitions unavoidable. So, come what may, long-overdue marriage equality would have been on the books by the end of the year; But by introducing it this way Merkel could dishonestly soak up some of the international credit, and maybe collect some votes from gullible centre-leftists domestically as well.

And what about the government‘s lawmakers, who ceremoniously gathered together in parliament, voting in favour of gay marriage on account of their ‘conscience‘: Where was this conscience of theirs in the years before? Does it only compassion towards gay peoples‘ civil rights when it is electorally opportune to do so? Did they not think that the equal rights for gay citizens are sufficiently important to merit defying mere partisan voting instructions over?

As Germany has economically boomed under Merkel‘s leadership, social compassion and honesty in the public sphere has reached a record low. Corrupt property developers, ruthless drug dealers, and organised crime are being allowed to take over economically deprived parts of Berlin, Frankfurt, Bremen and Colonoge with impunity, while police simply watch. As Berlin‘s political-corporate elite shops in an ever-growing number of luxury all-organic supermarkets, they cheer on the financial rape of Greece and other Southern European countries by the German-led EU‘s austerity programs; Brutal regimes of cuts and privatisations have left some ordinary, hard-working people in those countries unable to afford even basic essentials such as food and medical care. The supposedly anti-racist, pro-equality mainstream media in Germany outdoes itself day-on-day in finding new, politically-useful ways to implicitly suggest to their readers that ‘lazy‘, ‘heat-dazed‘ Greeks deserve all the degrading austerity they get.

While German authorities dishonestly smear outspoken political rivals as a racist or extremist without due process to shut them up, the government‘s very own Federal Police Agency racially profilies perfectly law-abiding Turkish, Kurdish, Arab and African German citizens with glee; Flagrantly violating the Basic Law‘s protection of equal individual liberty in a desperate but sleek attempt to win over the votes of the very people the government publicly condemns when they speak out. The government that digs up every moral trope in the box to condemn racism when it happens to come from its political opponents on the (far) right is the same one that to this day has never brought to justice the murderers of Laya-Alama Conde, a black man brutally tortured to death by German Police in 2004 in the city of Bremen; A sadistic crime for which cops took 9 years to even apologise for. Evidently, the only kind of xenophobia the current government has ever cared about combatting is the variety that reduces its share of the vote.

Merkel‘s government is taking Germany, and with it the European Union, a step towards the path of Putin, Lugaskenko and Victor Orban. Building an illiberal democracy in Germany risks setting back freedom globally, and emboldens dictators.

Unsurpringly, Vladimir Putin‘s authoritarian United Russia party has already moved to replicate the Network Enforcement Act. In July, it presented an extremely similar draft social media bill in the Russian parliament, the Duma, that even goes as far as explicitly referring to the German law as its inspiration. Proving that imitation is the sincerest flattery, Russian legislators even copied the exact, expedited content deletion timeframe of 24 hours directly from the German government‘s law.

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