In an early FAFO test for Elon Musk, Germany could be set to fine Twitter for repeatedly failing to comply with a social media hate speech takedowns law, aka the NetzDG, which requires swift removal of illegal content like hate speech.
The Federal Justice Office (BfJ) announced the move in a press release today — saying it’s instigated a proceeding under the country’s Network Enforcement Act (aka, NetzDG) after establishing there are “sufficient indications of failures” in the platform’s complaint management processes.
Under the NetzDG, social media platforms must response to user reports of illegal content, checking what’s been reported and removing content if it confirms it’s illegal, within seven days — or 24 hours for the most obviously illegal stuff. What’s illegal is governed by Germany’s criminal code, which includes hate speech, abuse and threats, and antisemitism.
“Numerous pieces of content was reported to the BfJ that was published on Twitter, which the authority considers illegal and, despite user complaints, was not deleted or blocked by the provider within the legally stipulated periods. The fine proceedings initiated are based on this,” the BfJ said in a statement (which we’ve translated from German with machine translation).
“In the case of individual violations by providers of social networks, of the inspection and deletion obligations in the NetzDG, it cannot generally be assumed that there is no effective procedure for dealing with complaints about illegal content. However, a systemic failure of complaint management is subject to fines, which occurs when violations of the relevant specifications of the NetzDG occur repeatedly in a timely manner and in a manner that is relevant to the subject.”
The Office said the content it’s acting against Twitter over is “closely related in terms of time and substance” — indicting a “systemic failure in the provider’s complaint management”. “They were published on Twitter over a period of around four months and reported to the provider of Twitter as illegal by users,” it added. “All content contains similar, unjustified, defamatory statements of opinion, all directed against the same person. According to the BfJ, they constitute an offence.”
On paper, Germany’s NetzDG law allows for fines up to €50 million for breaches of the regime.
However, up to now, the government has not sought to enforce the law for content moderation violations — and, let’s face it, no social media firm can claim a perfect record on this front — so it’s interesting to see Musk’s Twitter needling the Justice Office into action at long last. (NetzDG came into force all the way back in October 2017, when Musk was more busy hyping Hyperloop and The Boring Company than beating Twitter to death.)
The messaging platform Telegram was hit with NetzDG fines totalling €5.125 million last year. But that was for failing to provide users with tools to report illegal content and not setting up a legal entity in Germany to receive official comms from regulators — rather than for breaches of the takedown rules themselves, which is what Twitter appears to be facing here.
We emailed Twitter’s press office for a response to the BfJ initiating a proceeding over system content moderation failures and it responded with an automated reply that contains the poop emoji — something Twitter’s press email account has been doing since late last month. (Musk previously liquidated Twitter’s comms department, paving the way for his remaining “hardcore” engineers to replace intelligent comms staff with a dumb algorithm.)
Since Musk carried a sink into Twitter HQ at the end of October — to signal the start of his reign/flushing the platform down the drain — he’s set to slashing headcount and dismantling resources that had previously been directed into content moderation. Yet despite running a wrecking ball through the platform’s ability to respond to user reports of hateful content he has claimed to be reforming and improving its approach to moderation — making a big show of expanding an existing crowd-sourced fact-checking feature, called Community Notes.
He’s suggested this is his preferred route to delivering decentralized and fair speech moderation, via a system to supplementary notes that may be appended to ‘bad speech’ rather than taking it down (combined with some penalties like removing the offending tweets from algorithmic recommendation).
Thing is, Musk’s argument is not only disingenuous — outsourcing content moderation while gutting internal resource is not an improvement however you want to spin it — it’s also blind to the legal risk his decisions set the company up for in countries like Germany where there is no crowdsourced debate to be had over illegal content since the law requires prompt removal of illegal tweets. Hence the NetzDG offers an early test of Musk’s approach/claims/appetite for fines, as we reported last year.
(NB: The European Union’s Digital Services Act also places legal requirements on how digital services need to approach content governance — and that regulation is coming into force across the EU for all digital services from early 2024; although a subset of larger platforms, so called VLOPs, are expected to be compliant sooner, likely from this fall, and it’s possible Twitter could hit the VLOP threshold. Fines under the incoming EU regime, meanwhile, can scale up to 6% of global annual turnover.)
Back to Germany: Twitter appears to have a chance to steer out of what could be a multi-million-dollar NetzDG fine if it engages with the federal government over concerns about illegal content — as the BfJ says it’s giving the company the opportunity to comment on the alleged systemic failure of complaint management.
If Twitter fails to do that, or — say — it sends a response that has as much substance as a poop emoji, the BfJ will move to the next stage of the proceeding by concluding that its allegation of illegal behavior remains justified — and apply to the Bonn District Court for the initiation of preliminary ruling proceedings.
NetzDG requires a judge to rule on the illegality of the complained about content, prior to any fine being issued for a takedown failure, so it would be up to the District Court of Bonn to do that. If the court upholds the BfJ’s view of the content’s illegality the Office would then be empowered to hit Twitter with a fine. So there’s still time to stock up on popcorn for this one.
If that wasn’t enough FAFOing in Germany, Musk’s Twitter is also facing a separate illegal content challenge over illegal content: Back in January, a holocaust denial hate speech lawsuit was filed by HateAid and the European Union of Jewish Students who are seeking to establish whether companies with T&Cs that prohibit antisemitism have a contractual obligation to uphold their terms.
The litigants are taking a different tack (vs NetzDG) — and, if their suit prevails, it could set a precedent that would apply more widely than just Twitter. So Musk’s tenure atop the bird could have wider significance for free speech than even he suspects.