Germany's battle against online hate speech

Regina Nagel has learned that caution must be her guiding principle on the internet. She keeps posts and comments to a minimum, and is careful about who her Facebook friends are. But all that precaution still wasn't enough.

Last September, a friend shared one of her posts which ended up triggering some shocking hate speech. Nagel is a parish officer in the Catholic Church. At the same time, she is also a member of a reform movement within the Church known as the Synodal Path, which was established in response to the child abuse scandal that continues to rock the Catholic Church.

The author of the most vitriolic comment in response to Nagel's post was a right-wing Catholic who publishes under his own name online, including disparaging comments about women in pastoral capacities. He insulted Nagel personally, and in a later post employed misogynist language to refer to her appearance.

"It's completely beyond the pale, of course. But I didn't let it get to me," she said. "After all, it wasn't actually a direct threat to my health and safety, as has been the case with a number of politicians." Still, two friends reported the abusive comment to Facebook. But so far nothing has been done, and the text is still there for all to read.

Social networks are mired in similar cases and the tone on the net was already often very aggressive, even before the COVID-19 pandemic. Worst affected are women, especially women with a significant public profile. Which was why the biggest social media platforms, the likes of Facebook or YouTube, are now obliged to remove hateful posts in Germany.

Starting February 1, a new and even stricter legal framework will apply. Networks with more than 2 million users will not only have to remove illegal content, they will also have to register that content and the user's IP address with the Federal Criminal Police Office (BKA) — in principle, at least. Abusive posts will be directed to a new Central Reporting Unit for Criminal Content on the Internet (ZMI).

Some 200 officials will process the reports. But the fear is that Germany's structures for combating and containing internet hate crime could remain almost entirely toothless. 

Incitement to hate, murder threats

Firstly, the kind of insult or defamation that was directed at Nagel will not be affected by the changes. "In cases of defamation, for instance, there will be no significant improvement. This is because, with the law as it currently stands, the will of the victim is crucial in deciding whether or not charges are pressed concerning allegations of defamation," said Josephine Ballon, senior legal adviser to the organization HateAid, which supports victims of internet hate crimes.

But the decision on whether an incident — and the content involved — is reported to the BKA police unit is made by the social media platforms themselves, and not the users. The focus of BKA investigations should be illegal content such as incitement to hatred, in the form of antisemitic and racist comments, murder threats and use of unconstitutional symbols. In essence, said Ballon, it's the right sort of approach." Moreover, she said, "the basic idea behind this strategy is to ensure that the processing of hate speech reports is accelerated, leading to more prosecutions. And that can only be welcomed."

The BKA's new reporting unit is designed to ease the growing workload already faced by prosecutors in several states, as well as facilitating the quickest possible access to IP addresses. This is of special importance given the fact that these addresses are only stored for a few days in Germany.

But it's not the relevant authorities that decide on whether there is enough initial evidence to open an investigation. Instead, the social network in question decides whether a case should be brought to the attention of the BKA, which then decides if an investigation should take place.

Normally, that decision is made by state prosecutors — for good reason. After all, it is only once the prosecutors have made their assessment that the police begin their investigation. At the moment, it's not standard practice for the police decide for themselves whether to launch an investigation. This, however, is set to be the case at the new reporting unit. 

This in part explains why Facebook and Google are appealing against the new procedure, meaning for the time being that they do not have to report cases to BKA investigators. Ballon said she believes the appeal is not unjustified. 

"The main fear is that the BKA could become one huge data swamp with an incredible quantity of reports being processed without either a court or a state prosecutors ever casting an eye on it and deciding: Is this a criminal offense or not?"

Marginal cases tricky to decide

Cases involving social media posts aren't often black or white, and it can be tricky to come up with anything like an incontrovertible decision, warned Ballon. To illustrate her qualms, she pointed to the area of anti-constitutional symbols.

"It's important to differentiate. Has a swastika, for instance, been posted by someone with fanatical right-wing convictions, which is indeed a criminal offense? Or is it perhaps a swastika posted in an educational or artistic context? Which in this case would be permitted," she said. The worst-case scenario would be if artists and activists decided not to get involved in a debate and people who haven't posted anything that is illegal "end up buried in the BKA's filing cabinets," she added.

Speaking to DW, the BKA was eager to allay such concerns. The agency insisted that the vast majority of the people employed at the ZMI would be ordinary law enforcement officers, whose duties would also include checking the possible illegality of claims received by the agency. In all, the process developed so far ensures that, in each phase of the assessment of claims, there should be intensive consultation with the judiciary with the goal of recognizing and respecting the roles of the actors as normatively defined. For instance, that the BKA cooperates closely with the Central Office for the Registration of Cybercrime (ZAC) and state prosecutors in Cologne.

There are no plans to create a central database, and reports of incidents "with no criminal relevance are closed down by judicial officials with any data previously passed onto the BKA deleted as early as possible," said the BKA.

However, HateAid said the flood of reports could mean that this process might take up to a year — a year in which the BKA remains in possession of information about people who have not posted anything that might be deemed criminally relevant.

Social networks still largely unmonitored

The problem remains is that it's still up to the major platforms like Facebook or Google to report potentially criminal content to the BKA. Which is why Ballon of HateAid doesn't expect any big improvements from February 1. "If people just ignore it, nothing is going to change," she said.

Her pessimism is shared by Leonhardt Träumer, founder of ReportHate (Hassmelden), an organization that's also active on behalf of victims of online hate crime. With the responsibility for reporting possibly incriminating content still with the people who operate the platforms, Träumer said it's "as if all the many thousands of security and surveillance cameras installed by the German authorities at airports, stations and elsewhere were operated by an American company."

Employees of that company would monitor the recordings, "and only when this entirely private US company would signal that potentially criminal activity had been detected on the recorded material, would it then allow a tiny extract of the recordings to be passed on to the German authorities. It's clearly not an efficient system," said Träumer.

He said it's likely that his small independent reporting unit for hate speech will one day find itself carrying out a task "that is not actually our responsibility." It could, he believes, take years for the courts to rule on appeals brought by Google or Facebook.

This article was originally written in German

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