German Court Tells Facebook It Can't Delete Comments, Even Though German Law Says It Must Delete Comments

from the damned-if-you-do,-damned-if-you-don't dept

Earlier this year, we wrote about Germany's free speech suppressing "hate speech" law, which required that social networks remove "hate speech" within 24 hours or face massive fines up to €50 million. Making it even more ridiculous, the law even provided for personal fines up to €5 million for EMPLOYEES at the social networks who were in charge of taking down ill-defined "hate speech."

This, of course, is a recipe for massive censorship. If you are facing fairly massive fines for failing to take down certain speech, you're very likely going to default towards the "take it down, take it down NOW!" side of things. And, indeed, merely 3 days after the law was on the books, a satirical magazine had its Twitter account blocked (no satire for you!). Just a few days later, the ridiculousness of this law became even more obvious, when Twitter deleted a tweet of Heiko Maas, now Germany's Minister of Foreign Affairs (and at the time its Federal Minister of Justice).

Pretty ridiculous, right?

Hold on. It just got more ridiculous. You see, the Higher Regional Court in Munich (the Munich Oberlandesgericht or OLG -- sorta, kinda, not quite like a state appeals court in the US) has now ruled that Facebook cannot delete comments that harm freedom of expression. Facebook had chosen to delete "a controversial statement," by a Bavarian politician (a member of the nationalist AfD party) Heike Themel, saying it violated community standards. But the court determined that Facebook deciding to delete such content was violation of Themel's freedom of expression.

So, uh, good luck to social media platforms in Germany, huh? If they don't remove content reported by users as "hate speech," they (and their employees directly) face massive fines. If they do delete content, they could get hauled into court and told they're violating freedom of expression rights. That seems like a complete no win situation.

Of course, this is just one mid-level regional court in Germany, and another report on this story notes that another regional court (in Heidelberg) just ruled the opposite way, saying that as a private company, Facebook had every right to manage its platforms by its own rules.

While I imagine that this kind of ruling might excite some of the people who have recently been suing platforms in the US over a similar theory (some of whom might already have... let's say... an affinity for historical Germany...), it should actually help demonstrate how absolutely ridiculous these laws are becoming -- both ordering websites to remove content while simultaneously telling them they cannot.

Thankfully, we haven't had the same legal mess play out in the US (and, thankfully, the First Amendment should mostly prevent this from happening), but the larger debate is effectively the same. You have a bunch of people demanding that social media disappear "bad" content, and a bunch of people demanding that social media not disappear content they like. Sometimes, it's the same people. But the end result is literally impossible to deal with.

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Filed Under: content moderation, free speech, germany, hate speech, munich, takedowns

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