Die Macht des Zweifels: Roman (German Edition)

Die Macht des Zweifels: Roman (German Edition) and millions of other books are Die Macht des Zweifels (German) Paperback – Import, October 31, by.
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  5. The German NetzDG: A Risk Worth Taking?.
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There's a problem loading this menu right now. Get fast, free shipping with Amazon Prime. Your recently viewed items and featured recommendations. View or edit your browsing history. Get to Know Us. English Choose a language for shopping. Not Enabled Word Wise: This is largely due to specific criminal law provisions referenced by the statute and the peculiarities these produce.

Collectively, the enumerated provisions of the German criminal code simultaneously criminalize more and less than would be encompassed by a generic ban on hate speech. Hence, the analytical value of hate speech is limited due to the particular criminal provisions NetzDG is based upon. It would be more accurate to say that the statute itself does precious little beyond seeking the removal of content that one cannot already express in public without the risk of criminal prosecution and sanctions. The law expressly avoids creating new criminal offences and does not, in any real sense, seek to expand existing limitations on freedom of expression in Germany.

The fact that one could in the past express many views that constitute incitement to hatred on social media platforms without any real fear of repercussions does not fundamentally alter that conclusion. It is rare for legal system to treat freedom of expression as an absolute right.

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Most European jurisdictions, including the German Basic Law recognise that there are limits. As a matter of German constitutional law, it is not clear whether the provision would run afoul of freedom of expression. At this stage it is useful to distinguish two scenarios.


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  • In the first scenario, a social media platform operator deletes content that is illegal: Under the German Basic Law, freedom of expression does not cover insults and defamations, or incitement to hatred. To the extent that deletion of the illegal content amounts to an infringement, this is justified as it is provided by provisions of general laws under Article 5 II Basic Law.

    Moreover, deleting illegal content appears as a measured sanction, given that such statements, when made in offline scenarios, often attract criminal prosecution which may result in fines and prison sentences. Conversely, in the second scenario the operator deletes content mistakenly deeming it illegal. Here, the issues become more complicated. The German Federal Constitutional Court has recognised that there is a presumption in favour of freedom of expression whenever it is unclear whether the expression is illegal, at least on topics of public interest.

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    Notably, this protection extends to public forums, even where access to them is regulated through private law relationships. However, NetzDG notably does not require censorship i.

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    If overblocking does take place as a result of NetzDG, then this would indeed be would be problematic under the German Basic Law. Despite their prevalence in legal writing on the subject, concerns that social media platforms will, when in doubt, delete content rather than risk a fine, appear overstated.

    Overblocking is likely to arise, so goes the argument, due to the structure of the fines that apply to a systematic failure to delete illegal content. Hence, a prudent social media platform operator would, when in doubt and confronted with a flurry of complaints, delete content that is questionable , rather than risk a fine.

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    With respect to illegal content, the matter is unproblematic from a constitutional perspective. For the reasons stated earlier, social media users do not benefit from protections under freedom of expression for illegal content. Again, the more problematic scenario arises when the social media platform operator mistakenly deletes legal content. For the user, this represents an infringement of freedom of expression.

    Indeed, if overblocking is a prevalent phenomenon beyond the occasional erroneous decision of the complaints management infrastructure, it could dissuade users from expressing their views on the platform. This in turn, would render the NetzDG significantly more problematic, and arguably unconstitutional. The Federal Constitutional Court has found a violation in ordering the publishers of a satirical magazine to pay compensation to an individual for an allegedly defamatory article, chiefly basing their ruling on the risk that it would discourage future exercise of freedom of expression.

    However, it is not clear that such a chilling effect is inevitable: Notably, and contrary to the impression given by some reports , no fines attach to decisions in individual cases. It is difficult to see why a social media platform operator, which ultimately requires continuous user engagement and content creation to be profitable, would adopt an overly aggressive deletion policy.

    Independence never an inevitability

    An exodus of users would be sure to follow the consistent and arbitrary deletion of legal content, and thus critically undermine the viability of the social media platform. It therefore appears more likely that the limited scope of the fines and the inherent economic interests of social networks encourage a more nuanced deletion policy: The argument is that freedom of expression does not necessarily equate to a right to access to any specific means of expression.

    For instance, a recipient of social security was not entitled to claim the necessary transportation costs to travel to a protest meeting. Moreover, access to and expression on most social networks is already significantly limited through private law terms and conditions. These grant platform operators wide-ranging powers to delete content or even indefinitely suspend accounts of users for actions that are unlikely to fall afoul of German criminal law. Against this backdrop, it is difficult to sustain an argument that the potential for unintended side effects of NetzDG are a unique or would as such suffice to find it unconstitutional.

    Social media platforms are hardly a free speech paradise: Overall, the NetzDG might after all form part of a civilizing influence on online debate, instead of having a one-sided chilling effect on freedom of expression. The fact that to date social media and online interaction more generally, has created a space for a significantly more laissez faire approach to expression is neither here nor there on the question of constitutionality. The obligations to delete illegal content are based on well-establish limits to freedom of expression, to which NetzDG chiefly adds a more robust enforcement mechanism.

    The constitutionality of NetzDG may to a considerable extent rest on an evaluation of the complaints management infrastructure that social media operators develop. Should it consistently, and inevitably, lead to a chilling effect on freedom of expression, then the argument for unconstitutionality grows stronger, but is in my view by no means straight-forward.

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    Conversely, the Federal Constitutional Court would be less likely to take issue with this novel regulatory approach if the deletion of legal content is limited to individual, non-systematic mistakes. Ultimately, the goal must be to limit the divide between the online and offline world as far as possible: I am not following here. The view that a suppression of "loud and radical" voices could be a legitimate goal of limitations on freedom of expression was categorically rejected by the Federal Constitutional Court in its Wunsiedel judgment.

    Similarly, the ECtHR has regularly held that freedom of expression also applies to views that "offend, shock or disturb the State or any sector of the population".