Document of the Week: Facebook Disappoints Authorities—Again

Facebook founder Mark Zuckerberg found himself in the crosshairs of Democratic lawmakers this month after his social network refused to swiftly remove a manipulated video purporting to show House Speaker Nancy Pelosi slurring her speech. The case, which comes at a time when congressional trust in the internet titan is low, could exacerbate rising concerns in Washington that may well test the United States’ willingness to accept unfettered freedom of online expression.

But this is hardly virgin territory for Facebook.

Nearly four years ago, Facebook found itself the target of a political backlash in Germany after it resisted pressure from Berlin to remove racist, anti-immigrant posts that German authorities said violated German laws barring some forms of insult and defamation.

At the time, German Chancellor Angela Merkel had responded to the worst refugee crisis in Europe since World War II by opening Germany’s borders in 2015 to more than 1 million refugees, many of them fleeing wars in Libya and Syria. But that decision galvanized a right-wing, anti-immigrant, populist movement of skinheads and neo-Nazis who targeted immigrants on the streets and online.

Germany’s dissatisfaction with what it viewed as Facebook’s lackluster response strained the level of trust with Berlin and ultimately resulted in tougher legal restraints on the company, as well as attendant checks on freedom of expression.

On Sept. 14, 2015, Heiko Maas, then Germany’s federal minister of justice and consumer protection (and now its foreign minister), fired off an angry letter to Facebook’s Dublin headquarters, accusing the internet giant of ignoring its users’ complaints about hateful posts and failing to abide by its own stated ethical standards. We are posting the letter, including an English translation, as our Document of the Week.

“It’s hardly comprehensible to internet users and citizens why certain contents such as photos of certain body parts are automatically deleted” as violations of Facebook’s community standards, but “racist and xenophobic utterances” are not, the letter reads. “The blanket reference that such posts did not violate your community standards becomes a farce.”

“There is no question that freedom of expression is indispensable,” added Maas, who currently serves as Germany’s Foreign Minister. “However, the internet is not a lawless space in which racist agitation and punishable statements can be spread unchecked.”

The letter led to a meeting between Germany, Facebook, Google, and Twitter, and it set the stage for an agreement on a voluntary code of conduct—titled “Together Against Hate Speech”—that would make it easier for users to report racist posts and included a commitment from the companies to move quickly to take them down, David Kaye, the United Nations special rapporteur on the promotion and protection of the right to freedom of opinion and expression, wrote in his recently published book, Speech Police: The Global Struggle to Govern the Internet.

But Maas was dissatisfied with the internet companies’ enforcement of the code, particularly Facebook’s.

“The way Heiko Maas saw it, Facebook betrayed him,” wrote Kaye, who is also a law professor at the University of California, Irvine. “That sense of betrayal ultimately changed German law and shook up the way democratic governments battle for control of the rules governing online speech.”

In March 2017, Maas proposed the Network Enforcement Law, which gave companies up to 24 hours after being notified to remove “manifestly illegal” content or face millions of euros in fines. Despite pushback from free speech advocates, Germany’s parliament, adopted the law in the summer of 2017. It went into force in early 2018.

Kaye and other free expression advocates have argued that the law provides powerful incentives—financial penalties—to remove controversial content but little financial incentive to take a stand for free expression and post material it suspects the government may consider illegal. But the German model, he noted, is being embraced by Germany’s fellow European Union members. Only today, the justification for stringent controls is to protect society from terrorists, not to shield immigrants from racist attacks.