By Kirsten Fiedler

Xenophobic attacks against refugees in Germany have dramatically increased over the past two years. In the first six months of 2015, German authorities counted 150 attacks on asylum-seeker shelters throughout the country.

On 27 August, in an attempt to address the situation, Germany’s minister of justice and consumer protection urged Facebook to take down racist material more pro-actively. The newspaper Tagesspiegel got hold of a letter that was sent by minister Heiko Maas to Facebook. In this letter, he expressed his dissatisfaction with the way in which the US company deals with racist and xenophobic content. He pointed out that according to the social network’s community standards, it “removes hate speech, which includes content that directly attacks people based on their race, ethnicity, national origin, religious affiliation etc.” and asked Facebook for a meeting to discuss “the possibility to increase the effectiveness and transparency of its community standards”.

Unfortunately, it is not clear at all to what kind of content Maas is referring to nor what kind of measures he is now expecting of Facebook – as the company’s community standards do not only re-prohibit already illegal behaviour but also include restrictions on content that would be perfectly legal in almost all European countries. At various times, Facebook has considered it acceptable, in some circumstances, to post messages containing videos of beheading, while unacceptable to upload a drawing which contained dots that were perceived as female nipples. Dots perceived as male nipples have always been acceptable.

Heiko Maas seems to be suffering from the widespread disease that affects the ability to differentiate between unlawful posts and the legitimate exercise of the right to freedom of expression. This widespread confusion was promptly confirmed in the response from Facebook’s spokesperson to the German minister, where the company explained that it works “hard every day to protect people on Facebook against abuse, hate speech and bullying”. In Germany, hate speech is a criminal offence under the Penal Code (§130 (1)), harassment at the workplace, however, is not illegal.

Another article on the same topic in the ZEIT interpreted Maas’ request that Facebook should show more “own initiative” – and this demonstrates how quickly an unclear request can lead to a very dangerous approach. While increased transparency regarding Facebook’s takedown activities is certainly a good idea, referring to the “effectiveness” of the community standards looks like an encouragement to censor legitimate speech. Should all removals be reported to the German police as a potential criminal offence – Maas is silent on the subject.

Yet, a look at the EU Charter of Fundamental Rights (Art. 52.1) and the European Convention on Human Rights (Articles 8 and 10) is sufficient to raise serious doubts as to the legality of asking a US company to become an unaccountable arbitrary judge, jury and executioner over online communications in Europe.

Heiko Maas is right on one point though – the internet is not a legal vacuum. It is not a space where US companies should be able to arbitrarily delete legitimate content and speech. Numerous examples show that Facebook’s censorship activities are already a problem. Too often, Facebook takes down posts or shuts down entire accounts that are perfectly legal in Europe. Only a few months ago, Femen activist Eloïse Bouton noticed that Facebook had blocked her account after she uploaded the cover of her book. In addition, there are still no penalties for the abuse of Facebook’s flagging system – a problem from which dissidents around the globe suffer. Ironically, citizens are more heavily regulated in this “legal vacuum” (by both the law and by terms of service) than traditional media, which only have to contend with the law.

So why does Heiko Maas mention Facebook’s community standards when he could have just produced evidence to demonstrate the company does not take down illegal content quickly enough – in breach of its obligations? Why is Germany’s justice minister thereby encouraging increased extra-judicial activities by a private company without a clear legal basis or judicial control?

The spokesman for domestic politics of the Greens in the Bundestags confirmed that statistics show, that very often “almost no effort to identify the perpetrators” is being made. Instead of simply asking for more commitment from Facebook, wouldn’t it therefore be wiser to encourage the social network’s users to file complaints to the German authorities and to improve the identification and efficient prosecution of right-wing terrorists by law enforcement?

Tagesspiegel, Facebook: no place for racism (27.08.2015)
http://www.tagesspiegel.de/medien/antwort-auf-brief-von-heiko-maas-facebook-kein-ort-fuer-rassismus/12238614.html

Letter from Heiko Maas to Facebook, Tagesschau (27.08.2015)
http://www.tagesschau.de/inland/facebook-maas-101~_origin-0bd499e5-9a13-4a5e-9217-f418e5440ce5.html

Huffington Post, Breasts on Facebook: Stop the Censorship, Mark Zuckerberg! (02.03.2015)
http://www.huffingtonpost.com/eloise-bouton/breasts-on-facebook-stop-_b_6608052.html

(Contribution by Kirsten Fiedler, EDRi)

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