Global concerns about the spread of misinformation online have increased following reports that the Russian government fabricated news stories to interfere with the United States presidential election.
This concern has led to numerous efforts to stop the threat of false information online. However, some of these new measures—including landmark legislation in Germany to criminalize fraudulent news on social media—threaten to infringe on free speech online.
This June, Germany passed legislation to combat fake news and hate speech on social media. The Netzwerkdurchsetzungsgesetz (NetzDG), or the “Act to Improve Enforcement of the Law in Social Networks” in English, took effect on October 1, 2017.
The law requires social media networks to remove “unlawful content,” including hate speech and fraudulent news, within 24 hours in cases where the content is “manifestly unlawful.” In situations where it is unclear if speech is “unlawful,” social media networks have seven days to evaluate it, and then take it down if necessary.
The law applies to major social media networks with at least two million German users, which includes Facebook, YouTube, and Twitter. Social media companies that fail to comply with the NetzDG can face fines of up to 50 million euros.
The NetzDG does not make new law regarding what speech is or is not legal, but instead enforces nearly 20 existing provisions of the German Criminal Code across social media.
Germany actually already regulates hate speech more strictly than many other democratic countries, as a part of the country’s denazification efforts following World War II. The NetzDG simply makes social media networks responsible for removing already “unlawful” forms of hate speech from their platforms.
Of the twenty provisions of German Criminal Code listed in the NetzDG, most of them involve forms of hate speech, including “using symbols from unconstitutional organizations” (such as swastikas), “incitement to hatred,” and “defamation of religions, religious and ideological associations,” among others. These types of hate speech, which were already illegal, will now be more strictly enforced on social media.
Beyond hate speech, it is less clear how authorities will define fraudulent news. One provision in the NetzDG criminalizes “treasonous forgery,” or “intentionally and knowingly allow[ing] falsified or altered . . . reports . . . or untrue assertions of a factual nature to come to the attention [of] the public.”
According to Emma Llanso, director of the Center for Democracy and Technology’s Free Expression Project, "treasonous forgery" was already illegal under German law, but it was not frequently enforced. The German NetzDG now “breathes new life into this law,” she said.
Germany has experienced issues with fraudulent news circulating on social media in the past. Following German Chancellor Angela Merkel’s announcement that Germany would accept nearly a million refugees, she was the victim of many false reports, including one that circulated widely online that she was greeted with flowers in Turkey by child brides.
Though the NetzDG is ambiguous regarding what type of fraudulent news is actually “unlawful content” subject to removal from social media, it is likely that this type of misinformation is the primary target of the law.
However, Llanso notes that the ambiguity of the definition of fraudulent news in the NetzDG is problematic for journalists.
Consequences for online journalism
Though it is undoubtedly important to stop the spread of fraudulent news on social media, free press advocates in Germany and around the globe have opposed the NetzDG for its ambiguity and possible negative consequences for journalism.
In the “Declaration on Freedom of Expression,” journalists and civil rights organizations, including Reporters Without Borders and the German Association of Journalists, opposed the NetzDG. The declaration stated, “We recognize that there is a need for action; however, the draft law does not meet the requirement to adequately protect the freedom of expression.”
Eva Werner, a spokeswoman for the German Association of Journalists, says that the NetzDG is problematic because “the limits of expression should not be defined by a profit-making company.”
Though the law does not directly compel news websites to remove speech (it specifically exempts “platforms offering journalistic or editorial content”) it may indirectly affect journalists.
“One danger is that the social media networks delete something that shouldn’t be deleted, like a post from a satire magazine, for example,” says Werner.
Because social media platforms will most likely err on the side of caution and remove flagged content to avoid high legal fees, legitimate journalism articles posted and shared on social media might be mischaracterized as fraudulent and removed. This could affect the visibility of journalism on social media. According to a Reuters study of 36 countries’ social media use, more than half of people with online access use social media as a news source. While it is certainly important to restrict fraudulent news, overly broad laws may have the negative consequence of sweeping up legitimate news as well.
“If you are a company you are going to want to avoid fines. . . . I think the result is likely to be greater censorship," UN Special Rapporteur on Freedom of Expression David Kaye told the BBC.
The German Association of Journalists points out that censorship on social media can affect journalists’ newsgathering ability. “The freedom of speech and the freedom of the press are closely linked. If journalists can’t find something on the web because it’s been deleted, it might affect their work,” says Werner.
Additionally, the Center for Democracy and Technology points out that the law is not clear regarding whether or not comment boards on journalistic websites will also be exempted from the law.
Finally, journalism advocates have noted that the law does not create an appeals system for journalists whose work has been wrongfully removed from social media to report the mistake.
Perhaps one of the most troubling consequences of the NetzDG is not for German journalists, however, but for journalists in other countries. Countries with less democratic political cultures are using the NetzDG and global discourse about the dangers of fraudulent news as a ruse to clamp down on the free press.
According to Reporters Without Borders, the Russian parliament considered a bill in July that mirrored the NetzDG. Critics of Russia’s bill fear that it would be used to censor the news media.
Other countries have also taken cues from the global concern about fraudulent news, leveraging it as a tool to censor legitimate news sources that might be critical of their administrations.
A recent PEN America report on fraudulent news described how Poland recently used rhetoric about fake news when clamping down on the free press in 2016. Poland’s state-owned media was previously under the control of a politically independent entity. However, this year, Polish President Andrzej Duda signed a law to place the state-owned media directly under the control of his conservative administration. He said in a statement that he signed the law in an effort to keep news “unbiased, objective, and credible.”
Additionally, Cambodian authorities recently used ‘fake news’ as an excuse to shutter the non-partisan English-language newspaper the Cambodia Daily, as well as nearly 20 radio stations, including U.S. funded programming such as Radio Free Asia and Voice of America. Government spokesmen in Cambodia cite Donald Trump’s rhetoric about the dangers of fake news to justify its restriction of the news media.
Stopping the spread of fraudulent news at home
Americans are also concerned with the spread of fraudulent news on social media. A recent Pew Research Center poll found that a majority of American adults believe that fraudulent news has caused “a great deal of confusion” about the basic facts of current events.
However, because American law establishes more robust protections for free speech than European law, attempting to use laws like Germany's NetzDG to control the spread of fraudulent news seems unlikely in the United States.
A California assemblymember's recent attempt to mitigate the spread of fraudulent news online was halted due to First Amendment concerns. The initial text of the bill made it “unlawful for a person to knowingly and willingly make, publish, or circulate on an Internet website . . . a false or deceptive statement designed to influence the vote.”
Because of the difficulties of using legal recourse to mitigate the spread of fraudulent news under American law, Congress is largely turning to social media companies to stop fake news on their own. Facebook’s chief operating officer, Sheryl Sandberg, recently met with House members to discuss the company’s efforts to discuss the issue, and last month, the House Intelligence Committee held an open hearing where representatives from Facebook, Twitter, and Google testified about their efforts to stop fraudulent news.
Still, some free speech advocates have expressed concern that leaving social media companies to handle the problem of fraudulent news leads to a lack of transparency. This concern came to the foreground when Facebook initially refused to reveal the propaganda ads purchased by Russian “trolls” that circulated before the presidential election. It eventually shared them with Congress.
Due to this lack of transparency and fear of government overregulation, some free speech advocates recommend simply teaching Americans to identify fraudulent news on their own. PEN America recommended teaching media literacy to stop the spread of fraudulent news, among other things, in its report on fraudulent news. Additionally, several states, including Pennsylvania and California, proposed bills this year to add courses on media literacy to public school curricula.
Regardless of the solution, the public should be wary of attempts to stop fraudulent news that overly restrict the free speech rights of journalists and the public. Fraudulent news is certainly dangerous to the democratic process, but overly impeding free speech is also inherently problematic.