Even accepting that free speech ends where criminal law begins, that doesn’t justify fining the platforms. If people are posting “illegal” content, go after them for breaking the law. Don’t go after the tools they use. By putting massive liability risks on platforms, those platforms will almost certainly overcompensate and over censor to avoid any risk of liability. That means a tremendous amount of what should be protected speech gets silence, just because these companies don’t want to get fined. Even worse, the big platforms can maybe hire people to handle this. The littler platforms? They basically can’t risk operating in Germany any more. Berlin is a hotbed of startups, but this is going to seriously harm many of them.
A new law allowing the German police to hack into mobile phones for even minor crimes, is expected to be passed by the German parliament this week [update: the law has now been passed]. Currently, the use of a “Staatstrojaner” – government trojan – is only permitted in order to prevent future terrorist attacks. Under the new law, the authorities will be allowed to implant surveillance malware to help secure convictions for over 70 types of crime. These include serious ones such as genocide, treason and murder, but also less serious crimes such as money counterfeiting, vehicle theft, computer fraud, rigged sports betting and tax evasion. Two kinds of trojans will be available. The first allows the authorities to eavesdrop on calls made with the mobile phone, whether using standard telephony or VoIP, while the second gives access to all information held on the device.
• What role the rights granted by the Charter of Fundamental Rights of the European Union plays: in particular, what is the relationship between copyright protection (Article 17(2)) and freedom of the arts (Article 13)?
• (C)can copyright protection be trumped by the need to safeguard freedom of the press and freedom of information? Or can fundamental rights be even directly invoked to prevent enforcement of copyright?
These two – rather fundamental – questions have been sent to the European Court of Justice from Germanys supreme court, undesgerichtshof (BGH).
Sky Deutschland has won a copyright infringement case against the operator of live streaming site Stream4u.tv, as well as the provider of the hardware that was used to decrypt a Sky signal. The District Court of Hamburg, Germany, ruled that they must pay €18,000 in damages.
This bill asks social media companies to take down content, including perfectly legal material, that social media companies like Facebook can arbitrarily label as “hate speech”, “fake news”, “pornographic content”, among other categories. In addition, the draft law de facto imposes filtering of content, despite the fact that such technology cannot understand context and will, therefore, inevitably lead to still more legal content being deleted. The basic aim of the bill is, of course, well-intentioned. However, the way this bill is drafted appoints social media companies as arbiters of legality and “the truth”. Furthermore, this bill breaches EU law, which establishes that all restrictions to fundamental rights, including freedom of expression, must be provided for by law, necessary and proportionate (Article 52 of the Charter of Fundamental Rights of the European Union). In addition, EU law also prohibits imposing general monitoring obligations on companies. If adopted, this unprecedented law would serve as a bad example for other states, including countries with serious democratic deficits.
Professor Schulz criticises the fact that the draft law covers a range of different types of offences, making it difficult to assess its necessity as a means of restricting freedom of speech. More damningly, he points to the key assumptions on which the law is based, arguing that they have been abandoned “for a long time”. Furthermore, he argues that “there are many effective ways of addressing fake news or hateful speech” that should be [implicitly, were not] taken into account to minimise potential negative effects on freedom of speech”.
Germany has approved a draft law that will enable businesses to run open WiFi hotspots without being held liable for the copyright infringements of their customers. Copyright holders will still have the ability to request that certain sites are blocked to prevent repeat infringement.
Minister Maas has proposed the law which places a variety of obligations on the companies, in the apparent hope that this will lead profit-motivated companies to take over private censorship measures. Following years of deletions of perfectly legal content by, for example, Facebook, Minister Maas seems to believe that this will lead to outcomes that are appropriate in a democratic society based on the rule of law. (…)
Another addition to the draft law is a procedure to prohibit the distribution of pornography. The effects on group chats, such as WhatsApp which might also be affected by the law, depending on the scope, will be interesting as partially public exchanges of legal content such as pornography would suddenly become the focus of deletions. (…)
In total, 24 criminal offences have been added to the latest draft, including counterfeiting and fake news for the purpose of treason against the nation, defamation of the state and its symbols, as well as insults to the Federal President.
Related, EU Observer: Germany calls for EU laws on hate speech and fake news »
The past week, German government put forward its controversial bill to fight online hate speech – threatening social platforms with fines up to € 50 million.
Under the rules proposed, social media companies must clearly explain rules and complaint procedures to users and follow up on each complaint. Blatantly illegal content must be deleted within 24 hours, while other law-breaking content must be taken down or blocked within seven days.
In November the BGH ruled that Snowden should be invited to Berlin and that the government make preparations to ensure his safety, raising the intriguing possibility that Berlin would have to provide protection to one of the most wanted men in the US. But then the Social Democrats and Christian Democrats appealed the decision. (…)
(T)he court made a U-turn in a ruling published Wednesday.